Rhode Island Consumer Protection News

FDA Announces New Measures to Protect Americans from Counterfeit Drugs

The U.S. Food and Drug Administration (FDA) today announced new steps to strengthen existing protections against the growing problem of counterfeit drugs. The measures, which were recommended in a report released today by the agency's Counterfeit Drug Task Force, emphasize certain regulatory actions and the use of new technologies for safeguarding the integrity of the U.S. drug supply. "The adoption of the FDA Counterfeit Drug Task Force's recommendations will further reduce the risk that counterfeit products will enter the U.S. drug distribution system and reach patients," said Dr. Andrew C. von Eschenbach, the FDA's Acting Commissioner. "We must remain vigilant in our efforts to ensure our nation's drug supply is protected against an increasingly sophisticated criminal element engaging in a dangerous type of commerce." Among other new measures, FDA will fully implement regulations related to the Prescription Drug Marketing Act of 1987, which requires drug distributors to provide documentation of the chain of custody of drug products -- the so-called "pedigree" -- throughout the distribution system. FDA had placed on hold certain regulatory provisions because of concerns raised at the time about the impact on small wholesalers. Most recently, in early 2004, FDA delayed the effective date of certain regulatory provisions regarding pedigrees to allow the industry time to adopt electronic technology for tracking drugs through the supply chain. Based on information from drug supply stakeholders, the FDA had expected this technology to be in widespread use in the drug supply chain by 2007, but it now appears that these expectations will not be met.

Further, FDA has not heard that the concerns raised in the past regarding the impact on small wholesalers remains, and in fact, FDA was encouraged by most drug stakeholders to allow the hold to expire. Doing so would also provide clarity in the drug supply chain regarding who is and is not required to pass a pedigree. Continuing the hold would perpetuate the current confusion and further allow opportunities for counterfeit and diversionary practices. FDA has, therefore, determined that it can no longer justify not implementing these regulations. Accordingly, the hold, which will expire in December, will not be continued. A potential new measure to safeguard the drug supply is the use of electronic track and trace technology, such as radio-frequency identification (RFID), which creates an electronic pedigree (e-pedigree) for tracking the movement of the drug through the supply chain. The FDA had expected this technology to be in widespread use in the drug supply chain by 2007. In early 2004 FDA delayed the effective date of the regulatory provisions regarding pedigrees to allow the industry time to adopt this technology. However, it now appears that FDA's expectations for adoption of the technology by 2007 will not be met. FDA therefore has determined it can no longer justify delaying implementation of the pedigree regulations.

Consistent with recommendations of the Task Force, FDA also announces that, during the next year, its enforcement of the pedigree regulations will focus on products most susceptible to counterfeiting and diversion. FDA intends to announce in the Federal Register the availability of a draft compliance policy guide for public comment describing this enforcement approach. By providing guidance on the types of drugs that are currently of greatest concern to FDA, the agency intends to give wholesale distributors a better idea on where and how to focus their initial energies to come into complete compliance with the regulations (21 CFR Part 203) for all the prescription drugs they distribute. The draft guidance clarifies how FDA intends to prioritize its pedigree-related enforcement resources in 2007. FDA may, under appropriate circumstances initiate regulatory action, including criminal prosecution, for pedigree violations that do not meet the factors listed in the guidance. The Task Force report also underlines the agency's belief that widespread use of e-pedigrees using electronic track and trace technology, including RFID, would provide an electronic safety net for our nation's drug supply. The report therefore recommends that stakeholders continue to work expeditiously toward that goal, and that their implementation of RFID technology be used first on products most susceptible to counterfeiting and diversion.

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