83_FR_13346 83 FR 13286 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance for Industry on Compounded Drug Products That Are Essentially Copies of an Approved Drug Product Under Section 503B of the Federal Food, Drug, and Cosmetic Act

83 FR 13286 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance for Industry on Compounded Drug Products That Are Essentially Copies of an Approved Drug Product Under Section 503B of the Federal Food, Drug, and Cosmetic Act

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 83, Issue 60 (March 28, 2018)

Page Range13286-13288
FR Document2018-06169

The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.

Federal Register, Volume 83 Issue 60 (Wednesday, March 28, 2018)
[Federal Register Volume 83, Number 60 (Wednesday, March 28, 2018)]
[Notices]
[Pages 13286-13288]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-06169]


-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2016-D-1267]


Agency Information Collection Activities; Submission for Office 
of Management and Budget Review; Comment Request; Guidance for Industry 
on Compounded Drug Products That Are Essentially Copies of an Approved 
Drug Product Under Section 503B of the Federal Food, Drug, and Cosmetic 
Act

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Food and Drug Administration (FDA) is announcing that a 
proposed collection of information has been submitted to the Office of 
Management and Budget (OMB) for review and clearance under the 
Paperwork Reduction Act of 1995.

DATES: Fax written comments on the collection of information by April 
27, 2018.

ADDRESSES: To ensure that comments on the information collection are 
received, OMB recommends that written comments be faxed to the Office 
of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, 
Fax: 202-395-7285, or emailed to [email protected]. All 
comments should be identified with the OMB control number 0910-NEW and 
title ``Guidance for Industry on Compounded Drug Products That Are 
Essentially Copies of an Approved Drug Product Under Section 503B of 
the Federal Food, Drug, and Cosmetic Act.'' Also include the FDA docket 
number found in brackets in the heading of this document.

[[Page 13287]]


FOR FURTHER INFORMATION CONTACT: Domini Bean, Office of Operations, 
Food and Drug Administration, Three White Flint North, 10A-12M, 11601 
Landsdown St., North Bethesda, MD 20852, 301-796-5733, 
[email protected].

SUPPLEMENTARY INFORMATION: In compliance with 44 U.S.C. 3507, FDA has 
submitted the following proposed collection of information to OMB for 
review and clearance.

I. Background

Guidance for Industry on Compounded Drug Products That Are Essentially 
Copies of a Commercially Available Drug Product Under Section 503B of 
the Federal Food, Drug, and Cosmetic Act

OMB Control Number 0910-NEW

    This information collection supports the above captioned Agency 
guidance. Section 503B of the Federal Food, Drug, and Cosmetic Act 
(FD&C Act) (21 U.S.C. 353b) describes conditions that must be met in 
order for compounded drugs to receive exemptions from certain sections 
of the FD&C Act, including section 502(f)(1) (21 U.S.C. 352(f)(1)) 
(concerning the labeling of drugs with adequate directions for use); 
section 505 (21 U.S.C. 355) (concerning the approval of human drug 
products under new drug applications (NDAs) or abbreviated new drug 
applications (ANDAs)) and section 582 (21 U.S.C. 360eee-1) (concerning 
drug supply chain security requirements). One of the conditions that 
must be met for a compounded drug product to qualify for the exemptions 
under section 503B of the FD&C Act is that ``the drug is not 
essentially a copy of one or more approved drugs'' (section 
503B(a)(5)).
    According to section 503B(d)(2) of the FD&C Act, a compounded drug 
is essentially a copy of an approved drug when it (1) is identical or 
nearly identical to an approved drug that is not on FDA's drug shortage 
list at the time the drug is compounded, distributed, and dispensed; or 
to a non-prescription drug product marketed without an approved 
application, or (2) contains the same bulk drug substance as an 
approved drug or a non-prescription drug product marketed without an 
approved application, unless there is a change that produces a clinical 
difference for an individual patient as determined by the prescribing 
practitioner between the compounded drug and the approved drug (see 
section 503B(d)(2)(A) and (B)).
    Under the policy proposed in the draft guidance, if an outsourcing 
facility intends to rely on a prescriber determination made under 
section 503B(d)(2)(B) to establish that a compounded drug is not 
essentially a copy of an approved drug, the outsourcing facility should 
ensure that the determination is documented on the prescription or 
order (which may be a patient-specific prescription or a non-patient 
specific order) for the compounded drug.
    If a prescription or order does not make clear that the 
determination required by section 503B(d)(2)(B) has been made, the 
outsourcing facility may contact the prescriber or health care 
facility, and if the prescriber or health care facility contact 
confirms it, make a notation on the prescription or order that the 
prescriber has determined that the compounded product contains a change 
that produces a clinical difference for patient(s). The date of the 
conversation with the health care facility contact or prescriber, and 
the name of the individual providing the determination, should be 
included on the prescription or order.
    In addition, if the outsourcing facility compounded a drug that is 
identical or nearly identical to an approved drug product that appeared 
on FDA's drug shortage list, the outsourcing facility should maintain 
documentation (e.g., a notation on the order for the compounded drug) 
regarding the status of the drug on FDA's drug shortage list at the 
time of compounding, distribution, and dispensing.
    An outsourcing facility should also maintain records of 
prescriptions or orders including notations that a prescriber has 
determined that the compounded drug has a change that produces a 
clinical difference for an individual patient. Because the time, 
effort, and financial resources necessary to comply with this 
collection of information would be incurred by licensed pharmacists and 
licensed physicians in the normal course of their activities, it is 
excluded from the definition of ``burden'' under 5 CFR 1320.3(b)(2).

II. Paperwork Reduction Act of 1995

    In the Federal Register of July 11, 2016 (81 FR 44879), we 
published a notice of availability for the draft guidance, including an 
analysis of estimated burden under the PRA, and invited public comment 
of the proposed information collection. Several comments were received 
and are discussed below.

III. Comments

    Issue One: Several commenters said it would be unnecessarily 
burdensome for prescribers to document the clinical need for a 
compounded drug, and that a pharmacist, nurse, or other clinician 
choosing to source compounded drugs from an outsourcing facility should 
be able to assess the clinical need for the compounded drug.
    FDA Response to Issue One: Under section 503B(d)(2), if a drug is 
not identical or nearly identical to an approved drug or a covered 
over-the-counter monograph (OTC) drug, and a component of the 
compounded drug is a bulk drug substance that is a component of an 
approved drug or a covered OTC drug, then the drug is essentially a 
copy and may not be compounded under section 503B unless there is a 
change that produces for an individual patient a clinical difference, 
as determined by the prescribing practitioner, between the compounded 
drug and the comparable approved drug. If a prescription or order 
already documents the determination of clinical difference, there is no 
additional documentation burden for the compounder. If a prescription 
or order does not make clear that the determination of clinical 
difference required by the statute has been made, the compounder may 
contact the prescriber, and if the prescriber confirms it, make a 
notation on the prescription or order that the compounded product 
contains a change that makes a clinical difference for the patient. The 
date of the conversation with the health care facility or prescriber, 
and the name of the individual providing the determination, should be 
included on the prescription or order. FDA estimates this contact will 
take 3 minutes and should not present significant burden. Maintaining 
prescription records that may include such notations should not present 
any additional burden, as FDA understands that maintaining records of 
prescriptions or orders for compounded drug products is part of the 
usual course of the practice of compounding and selling drugs.
    FDA also notes that for non-patient specific orders, the guidance 
states that an outsourcing facility may obtain a statement from the 
prescribing practitioner or a person able to make a representation for 
the health care practitioner. For example, a pharmacy manager could 
order a compounded drug and document on the order that the compounded 
drug will only be administered to patients for whom the prescriber 
determines that this formulation will produce a clinical difference.
    Issue Two: At least two commenters raised concerns that 
documentation of the prescriber determination of clinical

[[Page 13288]]

difference could lead to liability concerns (e.g., for a pharmacy 
manager who makes representations to an outsourcing facility about how 
a drug will be used) and scope of practice concerns (if a doctor 
concludes he or she should not be bound by the representations).
    FDA Response to Issue Two: For certain drugs, one of the conditions 
to qualify for exemptions under section 503B is that there is a change 
that produces for an individual patient a clinical difference, as 
determined by the prescribing practitioner, between the compounded drug 
and the comparable approved drug. If a pharmacy manager does not wish 
to document on the order that such a drug will only be administered 
after an appropriate prescriber determination, the manager could ask 
the prescriber to provide documentation. If a prescriber, or person 
able to make a representation for a prescriber, refuses to confirm that 
a compounded drug produces a clinical difference for a patient, the 
compounded drug may be considered ``essentially a copy'' of the 
commercially-available product. The outsourcing facility may decide in 
this scenario to not compound the drug.
    Issue Three: At least one commenter recommended that the guidance 
requires practitioners to provide additional details regarding the 
patient population in need of a compounded drug as part of the 
prescriber determination of clinical difference, and that both a 
hospital and practitioner should produce statements of clinical 
difference.
    FDA Response to Issue Three: FDA's draft guidance states that when 
an outsourcing facility intends to rely on a prescriber determination 
to establish that a compounded drug is not essentially a copy of an 
approved drug, the outsourcing facility should ensure that the 
determination is documented on the prescription or order for the 
compounded drug. This means the determination is referenced in the 
statute at section 503B(d)(2), which FDA cannot change through 
guidance. FDA cannot give exhaustive guidance regarding what such 
documentation may contain, but we did provide appropriate examples. 
Under the guidance, both a prescribing practitioner and a person able 
to make a representation for the practitioner, such as, potentially, a 
hospital pharmacy manager, would be able to produce a statement of 
clinical difference.
    Issue Four: At least one commenter asked about the acceptability of 
specific means of applying a determination statement to a product 
order.
    FDA Response to Issue Four: FDA does not believe a particular 
format is needed for a prescriber determination of clinical difference, 
provided that the determination clearly identifies the relevant change 
made to the compounded product and the clinical difference that the 
change will produce for patient(s), as determined by the prescriber.
    As none of the comments suggested that we revise our estimated 
burden for the information collection, we have retained our original 
estimate as follows:

                                               Table 1--Estimated Annual Third-Party Disclosure Burden \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Number of
Type of reporting recommendations in guidance     Number of      disclosures    Total annual         Average burden per disclosure          Total hours
                                                 respondents   per respondent    disclosures
--------------------------------------------------------------------------------------------------------------------------------------------------------
Consultation between the outsourcing facility              40             100           4,000  0.05 (3 minutes).........................             200
 and prescriber or health care facility, and
 the notation on the prescription or order
 documenting the prescriber's determination
 of clinical difference.
Checking FDA's drug shortage list and                      30             100           3,000  0.03 (2 minutes).........................             100
 documenting on the prescription that the
 drug is in shortage.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ There are no capital costs or operating and maintenance costs associated with this collection of information.

    We estimate that annually a total of approximately 40 outsourcing 
facilities (``number of respondents'' in table 1, line 1) will consult 
a prescriber to determine whether he or she has made a determination 
that the compounded drug has a change that produces a clinical 
difference for an individual patient as compared to the comparable 
approved drug and that outsourcing facilities will document this 
determination on approximately 4,000 prescriptions or orders for 
compounded drugs (``total annual disclosures'' in table 1, line 1). We 
estimate that the consultation between the outsourcing facility and the 
prescriber or health care facility contact adding a notation to each 
prescription or order that does not already document this determination 
will take approximately 3 minutes per prescription or order.
    We estimate that a total of approximately 30 outsourcing facilities 
(``number of respondents'' in table 1, line 2) will document this 
information on approximately 3,000 prescriptions or orders for 
compounded drugs (``total annual disclosures'' in table 1, line 2). We 
estimate that checking FDA's drug shortage list and documenting this 
information will take approximately 2 minutes per prescription or 
order.

    Dated: March 22, 2018.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2018-06169 Filed 3-27-18; 8:45 am]
 BILLING CODE 4164-01-P



                                               13286                               Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Notices

                                               Commissioner of Food and Drugs’                                          In 2015, the initial NAFDS Report to               completed (or are planning) from 2015
                                               authority provided in section                                         Congress detailed the specific Federal                to 2019. Planning for the local,
                                               1003(d)(2)(c) of the Federal Food, Drug,                              response to food and agriculture defense              territorial, and tribal information
                                               and Cosmetic Act (21 U.S.C.                                           goals, objectives, key initiatives, and               collections will commence after the
                                               393(d)(2)(c)).                                                        activities that HHS, USDA, DHS, and                   collection and reporting of Federal and
                                                  Protecting the nation’s food and                                   other stakeholders planned to                         State Agency level data.
                                               agriculture supply against intentional                                accomplish to meet the objectives                       This survey will be repeated
                                               contamination and other emerging                                      outlined in FSMA. The NAFDS charts a                  approximately every 2 to 4 years, as
                                               threats is an important responsibility                                direction for how the Federal Agencies,               described in section 108 of FSMA,
                                               shared by Federal, State, local, tribal,                              in cooperation with State, local,                     NAFDS, for the purpose of monitoring
                                               and territorial governments as well as                                territorial, and tribal governments and               progress in food and agricultural
                                               private sector partners. On January 4,                                private sector partners, protect the                  defense by government agencies.
                                               2011, the President signed FSMA.                                      nation’s food supply against intentional
                                               FSMA focuses on ensuring the safety of                                contamination. Not later than 4 years                   A purposive sampling strategy will be
                                               the U.S. food supply by shifting the                                  after the initial NAFDS Report to                     employed, such that the government
                                               efforts of Federal regulators from                                    Congress (2015), and every 4 years                    agencies participating in food and
                                               response to prevention, and recognizes                                thereafter (i.e., 2019, 2023, 2017, etc.),            agricultural defense cooperative
                                               the importance of strengthening existing                              HHS, USDA, and DHS are required to                    agreements with FDA (22 State
                                               collaboration among all stakeholders to                               revise and submit an updated report to                Agencies) and USDA (27 State
                                               achieve common public health and                                      the relevant committees of Congress.                  Agencies) will be asked to respond to
                                               security goals. FSMA identifies some                                     HHS/FDA is primarily responsible for               the voluntary survey. Food defense
                                               key priorities for working with partners                              obtaining the information from Federal                leaders responsible for conducting food
                                               in areas such as reliance on Federal,                                 and State, local, territorial, and tribal             defense activities during a food
                                               State, and local agencies for inspections;                            partners to complete the NAFDS Report                 emergency for their jurisdiction will be
                                               improving foodborne illness                                           to Congress. An interagency working                   identified and will receive an emailed
                                               surveillance; and leveraging and                                      group will conduct the survey and                     invitation to complete the survey
                                               enhancing State and local food safety                                 collect and update the NAFDS as                       online; they will be provided with a
                                               and defense capacities. Section 108 of                                directed by FSMA, including                           web link to the survey. The survey will
                                               FSMA (NAFDS) requires HHS and the                                     developing metrics and measuring                      be conducted electronically on the
                                               USDA, in coordination with the DHS, to                                progress for the evaluation process.                  FDA.gov web portal, and results will be
                                               work together with State, local,                                         The proposed survey of Federal and                 analyzed by the interagency working
                                               territorial, and tribal governments-to                                State partners will be used to determine              group.
                                               monitor and measure progress in food                                  what food defense activities, if any,                   FDA estimates the burden of this
                                               defense.                                                              Federal and/or State Agencies have                    collection of information as follows:

                                                                                                         TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1
                                                                                                                                                Number of
                                                                                                                             Number of                            Total annual       Average burden per
                                                                              Activity                                                        responses per                                                    Total hours
                                                                                                                            respondents                            responses              response
                                                                                                                                                respondent

                                               State Survey ............................................................                49                    1              49     0.33 (20 minutes) ......          16.17
                                                  1 There    are no capital costs or operating and maintenance costs associated with this collection of information.


                                                 The total burden for this collection of                             DEPARTMENT OF HEALTH AND                              (OMB) for review and clearance under
                                               information, therefore, is 16.17 hours.                               HUMAN SERVICES                                        the Paperwork Reduction Act of 1995.
                                                 The FDA Office of Partnerships                                                                                            DATES:  Fax written comments on the
                                                                                                                     Food and Drug Administration
                                               reviewed the questionnaire and                                                                                              collection of information by April 27,
                                               provided the amount of time to                                        [Docket No. FDA–2016–D–1267]                          2018.
                                               complete the survey. The total burden is
                                               based on our previous experiences                                     Agency Information Collection                         ADDRESSES:   To ensure that comments on
                                                                                                                     Activities; Submission for Office of                  the information collection are received,
                                               conducting surveys.
                                                                                                                     Management and Budget Review;                         OMB recommends that written
                                                 Dated: March 22, 2018.                                              Comment Request; Guidance for                         comments be faxed to the Office of
                                               Leslie Kux,                                                           Industry on Compounded Drug                           Information and Regulatory Affairs,
                                               Associate Commissioner for Policy.                                    Products That Are Essentially Copies                  OMB, Attn: FDA Desk Officer, Fax: 202–
                                               [FR Doc. 2018–06135 Filed 3–27–18; 8:45 am]
                                                                                                                     of an Approved Drug Product Under                     395–7285, or emailed to oira_
                                                                                                                     Section 503B of the Federal Food,                     submission@omb.eop.gov. All
                                               BILLING CODE 4164–01–P
                                                                                                                     Drug, and Cosmetic Act                                comments should be identified with the
                                                                                                                     AGENCY:    Food and Drug Administration,              OMB control number 0910–NEW and
                                                                                                                     HHS.                                                  title ‘‘Guidance for Industry on
daltland on DSKBBV9HB2PROD with NOTICES




                                                                                                                     ACTION:   Notice.                                     Compounded Drug Products That Are
                                                                                                                                                                           Essentially Copies of an Approved Drug
                                                                                                                     SUMMARY:   The Food and Drug                          Product Under Section 503B of the
                                                                                                                     Administration (FDA) is announcing                    Federal Food, Drug, and Cosmetic Act.’’
                                                                                                                     that a proposed collection of                         Also include the FDA docket number
                                                                                                                     information has been submitted to the                 found in brackets in the heading of this
                                                                                                                     Office of Management and Budget                       document.


                                          VerDate Sep<11>2014       20:30 Mar 27, 2018       Jkt 244001      PO 00000      Frm 00065   Fmt 4703   Sfmt 4703   E:\FR\FM\28MRN1.SGM   28MRN1


                                                                           Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Notices                                           13287

                                               FOR FURTHER INFORMATION CONTACT:                        determination made under section                      need for a compounded drug, and that
                                               Domini Bean, Office of Operations,                      503B(d)(2)(B) to establish that a                     a pharmacist, nurse, or other clinician
                                               Food and Drug Administration, Three                     compounded drug is not essentially a                  choosing to source compounded drugs
                                               White Flint North, 10A–12M, 11601                       copy of an approved drug, the                         from an outsourcing facility should be
                                               Landsdown St., North Bethesda, MD                       outsourcing facility should ensure that               able to assess the clinical need for the
                                               20852, 301–796–5733, PRAStaff@                          the determination is documented on the                compounded drug.
                                               fda.hhs.gov.                                            prescription or order (which may be a                    FDA Response to Issue One: Under
                                                                                                       patient-specific prescription or a non-               section 503B(d)(2), if a drug is not
                                               SUPPLEMENTARY INFORMATION:    In                                                                              identical or nearly identical to an
                                                                                                       patient specific order) for the
                                               compliance with 44 U.S.C. 3507, FDA                                                                           approved drug or a covered over-the-
                                                                                                       compounded drug.
                                               has submitted the following proposed                       If a prescription or order does not                counter monograph (OTC) drug, and a
                                               collection of information to OMB for                    make clear that the determination                     component of the compounded drug is
                                               review and clearance.                                   required by section 503B(d)(2)(B) has                 a bulk drug substance that is a
                                               I. Background                                           been made, the outsourcing facility may               component of an approved drug or a
                                                                                                       contact the prescriber or health care                 covered OTC drug, then the drug is
                                               Guidance for Industry on Compounded
                                                                                                       facility, and if the prescriber or health             essentially a copy and may not be
                                               Drug Products That Are Essentially
                                                                                                       care facility contact confirms it, make a             compounded under section 503B unless
                                               Copies of a Commercially Available                                                                            there is a change that produces for an
                                                                                                       notation on the prescription or order
                                               Drug Product Under Section 503B of the                                                                        individual patient a clinical difference,
                                                                                                       that the prescriber has determined that
                                               Federal Food, Drug, and Cosmetic Act                                                                          as determined by the prescribing
                                                                                                       the compounded product contains a
                                               OMB Control Number 0910–NEW                             change that produces a clinical                       practitioner, between the compounded
                                                                                                       difference for patient(s). The date of the            drug and the comparable approved
                                                 This information collection supports
                                                                                                       conversation with the health care                     drug. If a prescription or order already
                                               the above captioned Agency guidance.
                                                                                                       facility contact or prescriber, and the               documents the determination of clinical
                                               Section 503B of the Federal Food, Drug,
                                                                                                       name of the individual providing the                  difference, there is no additional
                                               and Cosmetic Act (FD&C Act) (21 U.S.C.
                                                                                                       determination, should be included on                  documentation burden for the
                                               353b) describes conditions that must be
                                                                                                       the prescription or order.                            compounder. If a prescription or order
                                               met in order for compounded drugs to                                                                          does not make clear that the
                                                                                                          In addition, if the outsourcing facility
                                               receive exemptions from certain                                                                               determination of clinical difference
                                                                                                       compounded a drug that is identical or
                                               sections of the FD&C Act, including                                                                           required by the statute has been made,
                                                                                                       nearly identical to an approved drug
                                               section 502(f)(1) (21 U.S.C. 352(f)(1))                                                                       the compounder may contact the
                                                                                                       product that appeared on FDA’s drug
                                               (concerning the labeling of drugs with                                                                        prescriber, and if the prescriber
                                                                                                       shortage list, the outsourcing facility
                                               adequate directions for use); section 505                                                                     confirms it, make a notation on the
                                                                                                       should maintain documentation (e.g., a
                                               (21 U.S.C. 355) (concerning the approval                                                                      prescription or order that the
                                                                                                       notation on the order for the
                                               of human drug products under new                                                                              compounded product contains a change
                                                                                                       compounded drug) regarding the status
                                               drug applications (NDAs) or abbreviated                                                                       that makes a clinical difference for the
                                                                                                       of the drug on FDA’s drug shortage list
                                               new drug applications (ANDAs)) and                                                                            patient. The date of the conversation
                                                                                                       at the time of compounding,
                                               section 582 (21 U.S.C. 360eee–1)                                                                              with the health care facility or
                                                                                                       distribution, and dispensing.
                                               (concerning drug supply chain security                     An outsourcing facility should also                prescriber, and the name of the
                                               requirements). One of the conditions                    maintain records of prescriptions or                  individual providing the determination,
                                               that must be met for a compounded                       orders including notations that a                     should be included on the prescription
                                               drug product to qualify for the                         prescriber has determined that the                    or order. FDA estimates this contact will
                                               exemptions under section 503B of the                    compounded drug has a change that                     take 3 minutes and should not present
                                               FD&C Act is that ‘‘the drug is not                      produces a clinical difference for an                 significant burden. Maintaining
                                               essentially a copy of one or more                       individual patient. Because the time,                 prescription records that may include
                                               approved drugs’’ (section 503B(a)(5)).                  effort, and financial resources necessary             such notations should not present any
                                                 According to section 503B(d)(2) of the                to comply with this collection of                     additional burden, as FDA understands
                                               FD&C Act, a compounded drug is                          information would be incurred by                      that maintaining records of
                                               essentially a copy of an approved drug                  licensed pharmacists and licensed                     prescriptions or orders for compounded
                                               when it (1) is identical or nearly                      physicians in the normal course of their              drug products is part of the usual course
                                               identical to an approved drug that is not               activities, it is excluded from the                   of the practice of compounding and
                                               on FDA’s drug shortage list at the time                 definition of ‘‘burden’’ under 5 CFR                  selling drugs.
                                               the drug is compounded, distributed,                    1320.3(b)(2).                                            FDA also notes that for non-patient
                                               and dispensed; or to a non-prescription                                                                       specific orders, the guidance states that
                                               drug product marketed without an                        II. Paperwork Reduction Act of 1995                   an outsourcing facility may obtain a
                                               approved application, or (2) contains                      In the Federal Register of July 11,                statement from the prescribing
                                               the same bulk drug substance as an                      2016 (81 FR 44879), we published a                    practitioner or a person able to make a
                                               approved drug or a non-prescription                     notice of availability for the draft                  representation for the health care
                                               drug product marketed without an                        guidance, including an analysis of                    practitioner. For example, a pharmacy
                                               approved application, unless there is a                 estimated burden under the PRA, and                   manager could order a compounded
                                               change that produces a clinical                         invited public comment of the proposed                drug and document on the order that the
                                               difference for an individual patient as                 information collection. Several                       compounded drug will only be
daltland on DSKBBV9HB2PROD with NOTICES




                                               determined by the prescribing                           comments were received and are                        administered to patients for whom the
                                               practitioner between the compounded                     discussed below.                                      prescriber determines that this
                                               drug and the approved drug (see section                                                                       formulation will produce a clinical
                                               503B(d)(2)(A) and (B)).                                 III. Comments                                         difference.
                                                 Under the policy proposed in the                         Issue One: Several commenters said it                 Issue Two: At least two commenters
                                               draft guidance, if an outsourcing facility              would be unnecessarily burdensome for                 raised concerns that documentation of
                                               intends to rely on a prescriber                         prescribers to document the clinical                  the prescriber determination of clinical


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                                               13288                        Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Notices

                                               difference could lead to liability                       ‘‘essentially a copy’’ of the                         regarding what such documentation
                                               concerns (e.g., for a pharmacy manager                   commercially-available product. The                   may contain, but we did provide
                                               who makes representations to an                          outsourcing facility may decide in this               appropriate examples. Under the
                                               outsourcing facility about how a drug                    scenario to not compound the drug.                    guidance, both a prescribing practitioner
                                               will be used) and scope of practice                         Issue Three: At least one commenter                and a person able to make a
                                               concerns (if a doctor concludes he or                    recommended that the guidance                         representation for the practitioner, such
                                               she should not be bound by the                           requires practitioners to provide                     as, potentially, a hospital pharmacy
                                               representations).                                        additional details regarding the patient              manager, would be able to produce a
                                                  FDA Response to Issue Two: For                        population in need of a compounded                    statement of clinical difference.
                                               certain drugs, one of the conditions to                  drug as part of the prescriber                           Issue Four: At least one commenter
                                               qualify for exemptions under section                     determination of clinical difference, and             asked about the acceptability of specific
                                               503B is that there is a change that                      that both a hospital and practitioner                 means of applying a determination
                                               produces for an individual patient a                     should produce statements of clinical                 statement to a product order.
                                               clinical difference, as determined by the                difference.                                              FDA Response to Issue Four: FDA
                                               prescribing practitioner, between the                       FDA Response to Issue Three: FDA’s                 does not believe a particular format is
                                               compounded drug and the comparable                       draft guidance states that when an                    needed for a prescriber determination of
                                               approved drug. If a pharmacy manager                     outsourcing facility intends to rely on a             clinical difference, provided that the
                                               does not wish to document on the order                   prescriber determination to establish                 determination clearly identifies the
                                               that such a drug will only be                            that a compounded drug is not                         relevant change made to the
                                               administered after an appropriate                        essentially a copy of an approved drug,               compounded product and the clinical
                                               prescriber determination, the manager                    the outsourcing facility should ensure                difference that the change will produce
                                               could ask the prescriber to provide                      that the determination is documented                  for patient(s), as determined by the
                                               documentation. If a prescriber, or                       on the prescription or order for the                  prescriber.
                                               person able to make a representation for                 compounded drug. This means the                          As none of the comments suggested
                                               a prescriber, refuses to confirm that a                  determination is referenced in the                    that we revise our estimated burden for
                                               compounded drug produces a clinical                      statute at section 503B(d)(2), which FDA              the information collection, we have
                                               difference for a patient, the                            cannot change through guidance. FDA                   retained our original estimate as
                                               compounded drug may be considered                        cannot give exhaustive guidance                       follows:

                                                                                      TABLE 1—ESTIMATED ANNUAL THIRD-PARTY DISCLOSURE BURDEN 1
                                                                                                                                      Number of                               Average
                                                                                                                  Number of           disclosures       Total annual
                                                  Type of reporting recommendations in guidance                                                                              burden per          Total hours
                                                                                                                 respondents              per           disclosures          disclosure
                                                                                                                                      respondent

                                               Consultation between the outsourcing facility and                             40                  100           4,000    0.05 (3 minutes) .....            200
                                                 prescriber or health care facility, and the notation
                                                 on the prescription or order documenting the pre-
                                                 scriber’s determination of clinical difference.
                                               Checking FDA’s drug shortage list and documenting                             30                  100           3,000    0.03 (2 minutes) .....            100
                                                 on the prescription that the drug is in shortage.
                                                  1 There   are no capital costs or operating and maintenance costs associated with this collection of information.


                                                  We estimate that annually a total of                  (‘‘number of respondents’’ in table 1,                DEPARTMENT OF HEALTH AND
                                               approximately 40 outsourcing facilities                  line 2) will document this information                HUMAN SERVICES
                                               (‘‘number of respondents’’ in table 1,                   on approximately 3,000 prescriptions or
                                               line 1) will consult a prescriber to                     orders for compounded drugs (‘‘total                  Food and Drug Administration
                                               determine whether he or she has made                     annual disclosures’’ in table 1, line 2).             [Docket No. FDA–2017–N–6397]
                                               a determination that the compounded                      We estimate that checking FDA’s drug
                                               drug has a change that produces a                        shortage list and documenting this                    Agency Information Collection
                                               clinical difference for an individual                    information will take approximately 2                 Activities; Submission for Office of
                                               patient as compared to the comparable                    minutes per prescription or order.                    Management and Budget Review;
                                               approved drug and that outsourcing                                                                             Comment Request; Food Labeling;
                                                                                                          Dated: March 22, 2018.
                                               facilities will document this                                                                                  Calorie Labeling of Articles of Food in
                                               determination on approximately 4,000                     Leslie Kux,                                           Vending Machines and Nutrition
                                               prescriptions or orders for compounded                   Associate Commissioner for Policy.                    Labeling of Standard Menu Items in
                                               drugs (‘‘total annual disclosures’’ in                   [FR Doc. 2018–06169 Filed 3–27–18; 8:45 am]           Restaurants and Similar Retail Food
                                               table 1, line 1). We estimate that the                   BILLING CODE 4164–01–P                                Establishments
                                               consultation between the outsourcing
                                                                                                                                                              AGENCY:   Food and Drug Administration,
                                               facility and the prescriber or health care
                                                                                                                                                              HHS.
daltland on DSKBBV9HB2PROD with NOTICES




                                               facility contact adding a notation to
                                               each prescription or order that does not                                                                       ACTION:   Notice.
                                               already document this determination                                                                            SUMMARY:   The Food and Drug
                                               will take approximately 3 minutes per                                                                          Administration (FDA, Agency, or we) is
                                               prescription or order.                                                                                         announcing that a proposed collection
                                                  We estimate that a total of                                                                                 of information has been submitted to the
                                               approximately 30 outsourcing facilities                                                                        Office of Management and Budget


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Document Created: 2018-11-01 08:55:18
Document Modified: 2018-11-01 08:55:18
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice.
DatesFax written comments on the collection of information by April 27, 2018.
ContactDomini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733, [email protected]
FR Citation83 FR 13286 

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