HSPP- October-November-December, 2021- Newsletter
FDA Warning Letter Regarding the Failure to Submit INDs for the Conduct of Clinical Investigations with an Investigational New Drug
Inspections of clinical trials are conducted as a part of the U.S. Food and Drug Administration (FDA)’s Bioresearch Monitoring Program. These inspections are designed to evaluate the conduct of research and to help ensure that the rights, safety, and welfare of human subjects have been protected. Below you will find a short summary of warning letters issued because of the failure to submit investigational new drug applications.
Warning letter to Kaleido Biosciences, Inc
On September 7, 2021, the FDA issued a warning letter to Kaleido Biosciences, Inc. The FDA officials inspected two of Kaleido’s studies and concluded that investigators did not adhere to the FDA regulations governing the conduct of clinical investigations and the protection of human subjects.
Kaleido investigators thought that the product used in their investigations was subject to regulations as medical food but not subject to regulations as a drug. However, the FDA inspectors concluded that the product was intended for use as a drug, and not as a food.
The argument established by the FDA to support their conclusion is based in the definition of food vs a drug in the use of a clinical investigation. The FDA argued that the purposes of this clinical investigation was to evaluate the efficacy of a food product as treatment of a disease and, consequently, the food in this trial was seen as a drug. Therefore, use of the food product in the clinical trial is not exempt from the investigation new drug requirements.
For more details about the inspection of these studies and the findings of the FDA please review the warning letter to Kaleido Biosciences, Inc.
Warning letters to Jon B. Cole, MD, and Lauren R. Klein, MD., MS.
The FDA regulations require a sponsor to submit, and to have in effect, an investigational new drug application (IND) before initiating a clinical investigation of a drug in human subjects, unless the clinical investigation qualifies for an exemption (see 21 CFR 312.20 and 312.40(a)).
The FDA determined that Dr. Cole and Dr. Klein failed to comply with these requirements while using marketed drugs in two studies.
The investigators thought that an IND was not needed, and argued that the medications administered to subjects were not part of a research intervention but were provided only for clinical purposes. In addition, the investigators stated that if their clinical investigations were subject to FDA jurisdiction, they met the criteria for exemption from the investigational new drug requirements.
Contrary to the investigators, the FDA auditors concluded that the studies were designed to study the safety and efficacy of those marketed drugs products. In addition, the FDA determined the drugs were not delivered in the course of medical practice, but for research purposes. “The FDA underlined that whenever an investigator limits his choices, his patients’ choices, and the choices of the people working for them in the treatment of patients, then he/she is conducting a clinical investigation. This is different from the practice of medicine, where the primary intent is to treat the individual patient.”
Moreover, the FDA inspectors determined these clinical investigations did not meet the criteria for exempt since these investigations increased the risks or decreased the acceptability of the risks associated with the use of the drug products.
For more details about the studies mentioned above, the FDA’s thinking regarding IND requirements for market drugs and FDA views of clinical use vs. clinical investigation, please click on the links to the warning letters seen below:
Medical Devices
Medical device products are regulated by the FDA’s Center for Medical Devices and Radiological Health (CDRH). Depending on the device classification and other factors, the Code of Federal Regulations, Title 21, defines the requirements to approve or clear devices sold in the United States.
Investigators planning to conduct research with medical devices should learn the FDA status of a device. The investigator should determine whether the device has been approved, cleared for marketing, or whether it is an investigational device. When used in research it is important that the informed consent form accurately identify the type of device being used as approved, cleared, or investigational (see FDA guidance).
Reviewing the following information will allow investigators to understand the process by which the FDA classifies devices, clears devices, and approves devices. The sections below includes excerpts from the document titled Is it really FDA approved? and the FDA webpage on the Premarket Notification 510(k) clearance process.
Overview of Device Regulation
FDA classifies devices, or more accurately device types, in order to identify the degree of regulations for that product area. Classification is based on two factors: the device description/its physical characteristics, and the intended use.
FDA classifies devices into Class I, II, or III. The class of the device generally increases with its degree of risk. Regulatory control increases from Class I to Class III. The device classification regulation defines the regulatory requirements for a general device type. Most Class I devices are exempt from Premarket Notification 510(k); most Class II devices require Premarket Notification 510(k); and most Class III devices require Premarket Approval.
A description of device classification and a link to the Product Classification Database is available at “Classification of Medical Devices.” To learn more about how medical devices are classified, please watch the FDA educational video titled: How is my Medical Device Classified?
Note – A registration number with the FDA only means the FDA is aware of the manufacturer and device, and does not mean the device is ‘FDA cleared’ or ‘approved.’ (see more info here)
Cleared Devices
The FDA may clear a device for marketing through the 510(k) process, when the manufacturer demonstrates the device is substantially equivalent to a predicate device. A claim of substantial equivalence does not mean the device(s) must be identical. Substantial equivalence is established with respect to intended use, design, energy used or delivered, materials, performance, safety, effectiveness, labeling, biocompatibility, standards, and other applicable characteristics. The 510K clearance process does not require submission of clinical data to support the claim.
A device which is “cleared” to market should not be deemed the same as a device that has been “approved” by the FDA through a Premarket Approval (PMA) application.
Approved Devices
To receive FDA approval to market devices, manufacturers must demonstrate with sufficient, valid scientific evidence (i.e., submitting clinical data to support a claim) that there is a reasonable assurance that the devices are safe and effective for their intended use.
Investigational Devices
An investigational medical device is one that is the subject of a clinical study designed to evaluate the effectiveness and/or safety of the device. An application for an Investigational Device Exemption (IDE) is to be submitted by the Sponsor or investigator to use the investigational device/unapproved device in a clinical study.
Data collected during these clinical studies is to be included in a future marketing application. The IDE application enables manufacturers to ship a device from one state to another when conducting a clinical study on the device without being subject to most other provisions of the Federal Food, Drug, and Cosmetic Act.
An IDE application may also be required for a legally marketed device that has been modified and/or intended for a new use.
Clinical studies with investigational devices of significant risk must be approved by FDA and by an Institutional Review Board (IRB) before the study can begin. Studies with devices of no significant risk must be approved by the IRB only before the study can begin.
Investigators conducting research with medical devices are to include in their initial application and informed consent forms whether their devices are approved devices, cleared devices or investigational devices.
Inclusion of Certificate of Confidentiality Language in Consent Forms for NIH funded Studies
In October 2017, NIH updated its Policy for issuing Certificates of Confidentiality (Certificates or CoCs) for NIH-funded and conducted research. These Certificates protect the privacy of participants by limiting the disclosure of identifiable, sensitive information.
Informed consent forms of NIH funded studies must include the required language regarding the Certificate of Confidentiality (CoC) and the protections it offers. This requirement is already listed in the Main Consent Form Template .doc (page 8) and the Main Consent Form Checklist.doc (Page 4)
More information about Certificates of Confidentiality is available at https://grants.nih.gov/policy/humansubjects/coc.htm
IRB Forms – Update
The submission checklists for IRB applications have been updated.
The updates include:
- Changing the point of contact for I.T. security
- Clarifying details regarding the need for letters of permission to conduct research
- Clarifying details regarding the FERPA verification form
- Clarifying details regarding the use of recruitment tag lines for on-line postings