The DSCSA Standards Guidance is here! 1

By Tish Eggleston Pahl

This morning, FDA met another of its milestones in implementing the Drug Supply Chain Security Act (DSCSA) and posted a Draft Guidance, DSCSA Standards for the Interoperable Exchange of Information for Tracing of Certain Human, Finished, Prescription Drugs: How to Exchange Product Tracing Information.  FDA is to be commended for both getting the Draft Guidance posted by the DSCSA’s statutory deadline of November 27, and for not unduly upsetting the Thanksgiving of everyone in the pharmaceutical supply chain.  (Our food colleagues are deep into the menu and vending labeling final rules FDA also announced this week.)

With trading partners required on January 1, 2015, to begin exchanging transaction data when covered pharmaceuticals change owners, guidance from the agency was imperative. FDA specifically recognizes that, although the guidance is a “draft,” “the DSCSA clearly intends for stakeholders to rely upon this draft guidance document before finalization.”  As such, FDA is immediately implementing the Draft Guidance.

The Draft Guidance is very brief even though it was preceded by establishment of a docket and request for comments, 79 Fed. Reg. 9745 (Feb. 20, 2014), a two-day public workshop, and a call for more comments arising from that workshop, 79 Fed. Reg. 18562 (April 2, 2014).  For the most part, the agency quotes the DSCSA and directs stakeholders to relevant statutory requirements and definitions.

FDA does offer significant comfort to pharmaceutical supply chain trading partners in that it specifically acknowledges that trading partners can utilize “current” methods for the interoperable exchange of transaction data to provide product tracing information to subsequent supply chain purchasers.  Acceptable methods for this data exchange include, but are not limited to:

  • Paper or electronic versions of invoices;
  • Paper versions of packing slips;
  • Electronic Data Interchange (EDI) standards, such as 856 Advance Ship Notice (ASN), which is currently used to provide the receiving entity with advance data on shipments;
  • EPCIS (Electronic Product Code Information Services), which defines a data-sharing interface that enables supply chain partners to capture and communicate data about the movement and status of objects in the supply chain; and
  • Email or Web-based platforms (such as Web portals).

This is the first time that FDA has specifically endorsed specific methods and systems as appropriate for the interoperable exchange of transaction data.  In the long run, paper-based systems are not interoperable or feasible.  Paper is, at best, a stop-gap measure until trading partners move toward the DSCSA’s ultimate goal of a true, interoperable, electronic system that can trace individually serialized prescription pharmaceuticals through the supply chain.

The Draft Guidance is a good first step, with much more work still to be done, and many questions still unanswered.  FDA’s next tasks are to establish systems to accept facility and other information from third-party logistics providers and wholesale distributors.  There is definitely more to come in the weeks and months ahead.   FDA is accepting comments on the Draft Guidance for 60 days.

FDA Shares the Pain in Final Rules on Menu Labeling and Vending Machine Food Labeling 1

By Robert A. Hahn

Citing the obesity epidemic and the fact that Americans consume about one-third of total calories in the form of foods prepared outside the home, FDA yesterday issued two sweeping  final rules on nutrition labeling of foods sold in chain restaurants and similar retail food establishments and vending machines.

There had been considerable controversy over how FDA would define “similar retail food establishments” covered by the menu labeling rule.  Would FDA exempt food concessions in movie theatres and other entertainment venues (as it did in its 2011 proposed rule), supermarkets, and convenience stores?  In the end, FDA chose to narrow somewhat the types of foods that will be subject to menu labeling rather than exempt broad categories of retail food establishments.

The final rules are highly prescriptive and contain few of the accommodations that had been requested by industry.  The rules implement Section 4205 of the Patient Protection and Affordable Care Act of 2010.

Menu Labeling

Who Is Covered?

The menu labeling rule applies to “covered establishments.”  A “covered establishment” is defined as a “restaurant or similar retail food establishment” that:

  • Is part of a chain with 20 or more locations;
  • Doing business under the same name (regardless of type of ownership); and
  • Offering for sale substantially the same menu items.

The definition also includes restaurants and similar retail food establishments that would not otherwise be covered (e.g., because they are not part of a chain with 20 or more locations) but that voluntarily register with FDA and agree to comply with the regulation.  Some restaurants that are not covered establishments may do this in order to receive the protection of federal preemption from state and local menu labeling laws.

A “restaurant or similar retail food establishment” means any retail establishment that offers “restaurant-type food,” except for schools.

A “restaurant-type food” is a food that is: (a) usually eaten on the premises, while walking away, or soon after arriving at another location (such as a home, a workplace, or a park); and (b) is either (i) a food of the type served in restaurants or other establishments for immediate human consumption, or (ii) is a food processed or prepared primarily in a retail establishment, ready to eat, offered for sale but not for immediate consumption, and not offered for sale outside such establishment.

Covered: quick service restaurants, table service restaurants, take-out and delivery establishments (e.g., pizza take-out establishments), bakeries, cafeterias, coffee shops, grocery stores, convenience stores, big box stores, delis, food concessions in entertainment venues, food service vendors (e.g., ice cream shops, mall cookie counters), and retail confectionery stores.  Not covered: schools, food trucks, ice cream trucks, and transportation carriers (e.g., airlines).

Which Foods Are Covered?

The regulation applies to “standard menu items.”  A “standard menu item” is defined as a “restaurant-type food” that is routinely included on a menu or menu board or routinely offered for sale as a self-service food or food on display.

As noted above, a “restaurant-type food” is a food that is usually eaten on the premises, while walking away, or soon after arriving at another location.  Covered (by way of example): foods served for immediate consumption in a restaurant; food purchased at a drive-through window; take-out and delivery pizza; pizza or nachos sold from a movie theatre concession; foods sold from a hot buffet, a soup bar, or a salad bar; food ordered from a menu or menu board in a grocery store; and self-service foods and foods on display intended for individual consumption (e.g., sandwiches at a deli counter, cookies from a cookie counter, bagels and donuts for individual sale).  Not covered: foods that consumers usually store for use at a later time or that are typically eaten over several eating occasions, and foods that are customarily further prepared (e.g., loaves of bread, whole cakes, bags or boxes of candy); foods sold from bulk bins (e.g., granola, nuts); foods not intended solely for individual consumption (e.g., deli salads such as potato salad, chicken salad, cole slaw); and foods usually further prepared before consuming (e.g., deli meats, cheeses).

A “standard menu item” also must be routinely offered on a menu or menu board or as a self-service food or food on display.  Not covered: items such as condiments offered for general use; custom orders; daily specials; temporary menu items (foods appearing on a menu or menu board for less than 60 days per calendar year); customary market test foods (food appearing on a menu or menu board for less than 90 consecutive days in order to test consumer acceptance); self-service foods and foods on display for less than 60 days per calendar year or less than 90 consecutive days); and alcoholic beverages that are foods on display and not self-service foods (e.g., a bottle of wine kept behind a bar).

What Information Is Required?

The menu or menu board must provide three items:

  • The number of calories per menu item (or per serving for multiple-serving items usually offered for sale divided in discrete serving units, provided the serving unit and number of servings are declared);
  • The following succinct statement about total caloric intake: “2,000 calories a day is used for general nutrition advice, but calorie needs vary”; and
  • The following statement about the availability of additional nutrition information: “Additional nutrition information available upon request.”

For self-service foods and foods on display, calories must be displayed on a sign adjacent to and clearly associated with the food, a sign attached to a sneeze guard, or a single sign or placard listing the calories for several such foods.

In addition, for each standard menu item, additional nutrition information must be available on the premises of the covered establishment upon request.  The additional information must include the following nutrients: total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrate, dietary fiber, sugars, and protein.  This information may be provided in or on a counter card, sign, poster, handout, brochure, loose leaf binder, electronic device, menu, or any other form that is readily available on the premises and permits the customer to review it upon request.

What is a Menu or Menu Board?

FDA has opted for a broad definition of “menu or menu board” to mean “the primary writing… from which a customer makes an order selection.”   The word “primary” does not mean that a covered establishment has only one menu or menu board.  According to FDA, a writing will be considered a menu or menu board if it lists at least one standard menu item (or an image depicting a standard menu item) and the price of the standard menu item, and it can be used by a consumer to make an order selection at the time the consumer is viewing the writing.  Covered: a traditional menu or menu board, a paper take-out menu, a delivery menu, an online menu, a translite behind the counter that lists a standard menu item and its price, and a drive-through window menu board.  Not covered: a poster on a storefront, a coupon or other promotional material, a tray liner, a billboard, and stanchions.

When Must Covered Establishments Comply?

Covered establishments must comply by December 1, 2015.

Is There Federal Preemption?

Yes, the final rule will preempt all state and local laws that impose menu labeling requirements not identical to the federal law.

Vending Machine Labeling

Who Is Covered?

The final rule applies to “covered vending machine food,” which is defined as a food sold from a vending machine that is operated by a person owning or operating 20 or more vending machines or who has voluntarily registered with FDA and agreed to comply with the regulation. A “vending machine” is broadly defined to include any self-service machine that dispenses food without the need to replenish the machine between each vending operation.

Foods sold from vending machines are exempt if a prospective purchaser can view:

  • Calories, serving size, and serving per container information in the food’s Nutrition Facts label on the food without any obstruction;
  • Calories, serving size, and servings per container information listed in a reproduction of the food’s Nutrition Facts label on the food; or
  • Calories (total calories in the item, not calories per serving) on the food label (g., in a front-of-pack (FOP) label).

It is expected that most packaged foods sold in vending machines will provide calorie information in the form of an FOP label and will seek to qualify for the third exemption above.  For an FOP calorie label to qualify, however, it must:

  • Declare total calories for the entire item;
  • Appear in a type size that is at least 50% of the type size of the largest printed matter on the label; and
  • Appear with sufficient color and contrasting background as compared to other print on the label so as to permit a prospective purchaser to clearly distinguish it.

What Information Is Required?

A “covered vending machine food” must declare the total number of calories in the food clearly, conspicuously, and prominently in one of several ways (e.g., a sign in, on or adjacent to the vending machine, an electronic display).  Vending machines also must provide the vending machine operator’s contact information (name, telephone number, and mailing address or email address) on the face of the vending machine or with the calorie information (e.g., on a sign in, or, or adjacent to the vending machine).

When Must Covered Vending Machines Comply?

“Covered vending machine food” must comply by December 1, 2016.

The Ghost of Thanksgiving Future

By Nina Fedoroff, Ken Cassman and Marshall L. Matz, as published in the Des Moines Register

The Ghost of Christmas Future is the most fearsome character in “The Christmas Carol,” Charles Dickens’ beloved Christmas story, giving Scrooge a glimpse of his bleak future. Horrified, Scrooge changes his selfish lifestyle in a heartbeat.

An abundant Thanksgiving 2014 is almost upon us. But like Scrooge, we’ll need a dramatic change in our beliefs if we’re to have a plenitude of healthful food not just for us, but for all of the 9 or so billion expected at the global dinner table on Thanksgiving 2050.

The beliefs and narratives that need rethinking are those around GMOs and organic food.

Genetically modified organisms (GMOs) are crop plants and animals improved by modern molecular techniques, rather than older, often less precise methods. GM crops, such as insect-resistant corn and cotton, have been in commercial production for almost two decades. They are now grown in 27 countries on more than 400 million acres by 18 million farmers, more than 90 percent of whom are resource-poor, small-holder farmers.

GM crops have increased farm income, reduced pesticide use, soil erosion and carbon dioxide emission, and benefited consumers by decreasing fungal toxin contamination of corn.

It’s a fact that neither people nor animals have been harmed by consuming food or feed containing GM ingredients. Even decades ago, we thought that people would be reassured as evidence grew, as it has, that GM crops are safe. But that’s not what happened. Instead, more and more people have come to believe that they are dangerous.

America’s Thanksgiving 2014 will be a plentiful feast. Farmers have gotten very good at coaxing food from the land. Over the second half of the 20th century, the number of people on Earth doubled, yet the amount of food tripled. Mechanization, plant genetics, irrigation and synthetic fertilizers all contributed to the today’s food abundance.

But the notions that organically grown food is more healthful than food produced by conventional methods, and that organic is the only sustainable agriculture, are gaining traction, as is the idea that conventional agriculture and synthetic fertilizers are somehow bad.

So what are the facts? Organically grown food is not more healthful than conventionally grown food. Plants don’t care whether their nitrogen comes from manure or a sack of fertilizer. Organic produce is more expensive because organic farming is less productive than conventional farming. Nor is it sustainable on a global scale. Indeed, if the whole world relied on organic farming, we could feed about half of today’s 7 billion people.

What’s the forecast for Thanksgiving 2050? Although they had little effect on the world’s affluent city-dwellers, food price spikes since 2008 unleashed food riots in many poor countries and brought down governments. Indeed, the Arab spring started with food riots. This means that today’s abundance has a razor-thin margin.

It’s been estimated that to meet the challenge of global food security, the world’s farmers will have to produce more food in the next 50 years than all they’ve produced in the last 10,000 years combined. Can they? There’s deep reason for concern.

Important crops are reaching their yield plateaus in major food-producing countries. Because demand continues to rise, much of the recent increase in food production has come from putting more land under crops. Yet we’re beginning to understand that our planet’s resources are finite and that its biodiversity is precious.

We need instead to slow and stop conversion of natural ecosystems to cropland.

In developing countries, particularly in Africa, farmers can still grow much, much more. Organic farming is what most African farmers do now, and most of them are devastatingly poor. They need good seeds, fertilizer, agri-chemicals, training and information to triple their yields, not organic ideology that seeks to prevent access to modern farming inputs. They also need the entire infrastructure that supports modern food systems and the training to run it.

That’s what will put them on the road out of poverty.

Our belief systems and narratives matter, perhaps more than ever in the age of electronic social media. The organic food industry supplies a mere 4 percent of our food, but amplifies its message by promulgating the myth that organic food is more healthful and environmentally sound.

As well, GMO story-telling and fear-mongering have intensified in recent years, driven by individuals and organizations that profit from persuading people they are dangerous. This is influencing politicians worldwide and impeding the development and introduction of more nutritious, hardy and environmentally friendly GM crops and animals.

Belief systems are notoriously resistant to facts, even mountains of them. And real people don’t change their minds and hearts as fast as characters in stories.

But we urgently need to change our beliefs about food to realize the benefits of investing in advanced, science-based food production systems that can address the difficult challenges of making our agriculture both more sustainable and productive even as our numbers continue to grow.

About the authors: Nina Fedoroff, Ph.D., is a plant biologist and served as science and technology adviser to the Secretary of State from 2007-10. Ken Cassman, Ph.D., is an international agronomist at the University of Nebraska. Marshall Matz was counsel to the U.S. Senate Agriculture Committee specializing in nutrition and food security.

Stuffing Safety 1

By Barbara J. Masters, D.V.M.

It is that time of year again.  I don’t cook –and I continue to provide food safety advice for those of you that do.  Ah, it must be Thanksgiving.  Last year I provided some tips on thawing and cooking your Thanksgiving turkey.  I encourage you to review those tips if you have any questions on safely preparing your turkey.

This year, I am adding counsel on safely preparing the stuffing.  The most important things to remember are: stuffing should be cooked separately from the turkey (you can add it to the bird after both have been properly cooked), the stuffing should not be prepared ahead (unless you plan to freeze it), and the stuffing must reach a temperature of 165°F to be safe.

The safest way to prepare stuffing is to mix the ingredients just prior to cooking and place them in a shallow baking dish. Moist stuffing is always better, as heat destroys bacteria better in a moist environment.   The oven should be set no lower than 325°F and the stuffing should reach an internal temperature of 165°F.   The leftover stuffing should be promptly refrigerated within 2 hours of removal from the oven.  The leftover stuffing should be used within 3-4 days.

While we are all looking for those dishes we can prepare ahead to save time, stuffing is not one of them.  If you must prepare it ahead, you can prepare the stuffing and freeze the mixture in the shallow casserole dish that will be used for baking.  The stuffing can then be cooked from the frozen state (do not thaw) until it reaches 165°F.

If you add meat, poultry or shellfish to the stuffing (if I cooked, I certainly would add this), you should pre-cook the ingredient to 165°F before adding it to the stuffing.  This is true even when you are planning to freeze the stuffing and cook it at a later time.

Finally, if it is not clear by this point, the stuffing must reach an internal temperature of 165°F to ensure that it is safe.  Of course, you learned last year that a food thermometer is part of any “safe Thanksgiving.”  It is critical to use it to measure the temperature of both the turkey and the stuffing.

Have a Thankful and Happy Season.

Before joining OFW Law, Dr. Masters served as Acting Administrator and then Administrator for the United States Department of Agriculture Food Safety and Inspection Service (FSIS) from March 2004 through January 2007.

Ask Not for Whom the Bell Tolls, it Tolls for Your LDT (Part II)

By Evan P. Phelps

In our prior posting, we provided a brief overview of the notification and adverse event reporting requirements that will apply to the vast majority of a subset of in vitro diagnostic devices known as Laboratory Developed Tests (LDTs), most likely in the not so distant future.  These requirements were detailed in the draft guidance documents published on October 3 of this year, outlining the agency’s proposed plan to begin actively regulating firms that produce LDTs.

The draft guidance documents may be found here: Draft Guidance for Industry, Food and Drug Administration Staff, and Clinical Laboratories: Framework for Oversight of Laboratory Developed Tests (LDTs); and here Draft Guidance for Industry, Food and Drug Administration Staff, and Clinical Laboratories: FDA Notification and Medical Device Reporting for Laboratory Developed Tests (LDTs).

This posting provides an overview of the remainder of the regulatory controls outlined in these guidance documents.


FDA will begin applying various levels of additional requirements to LDTs based on the agency’s view of the amount of risk posed by the test. These additional controls will include, among others, premarket review and compliance with manufacturing quality controls found in the Quality System Regulation (QSR).[1] These requirements will apply to both LDTs that are currently in clinical use and to those that a laboratory intends to introduce in the future. The draft guidance indicates that the agency will establish three classes of LDTs and apply varying levels of premarket scrutiny and QSR compliance to each according to the risk they present.

  1. Lowest Level of Scrutiny: No Premarket Review and No QSR Requirements

The lowest level of premarket scrutiny and QSR compliance will be applied to devices considered to be of the lowest risk. These will include “Traditional LDTs.” “LDTs Used for Rare Diseases,” and “LDTs for Unmet Needs.”  While notification and MDR requirements still apply, FDA intends to continue to exercise enforcement discretion regarding premarket review and QSR requirements for LDTs that fit into these categories.

  1. a) Traditional LDTs

Although the use of the term “Traditional LDTs” may appear promising, the agency defines the term in the guidance in a way that is likely to be far narrower than laboratories’ own definition of the term. As a consequence, many laboratories that believe they are offering traditional LDTs may not in fact be doing so under FDA’s definition and will not be eligible for this exemption from the premarket review and QSR requirements. Under FDA’s definition, only those IVDs intended for clinical use that are designed, manufactured, and used within a single laboratory and are of the type of LDTs that were available when FDA first opted to exercise enforcement discretion for LDTs in 1976 are considered to be “Traditional LDTs.”  FDA indicates that it will consider several factors in determining if an LDT meets its definition of a “Traditional LDT.” These factors include:

  • Whether the device meets the definition of LDT (a device designed, manufactured and used by a single laboratory);
  • Whether the LDT is both manufactured and used by a health care facility laboratory (such as one located in a hospital or clinic) for a patient that is being diagnosed and/or treated at that same health care facility or within the facility’s health care system;
  • Whether the LDT is comprised only of components and instruments that are legally marketed for clinical use (e.g., analyte specific reagents, general purpose reagents, and various regulated laboratory instruments); and
  • Whether the LDT is interpreted by qualified laboratory professionals, without the use of automated instrumentation or software for interpretation.

When such criteria are ultimately applied, many laboratories that presently believe that they are offering a “Traditional LDT” may, in fact, learn that they are not and face more significant FDA regulatory burdens.

  1. b) LDTs Used for Rare Diseases

Likewise, the term “LDTs Used for Rare Diseases” is also defined in a way that makes it less inclusive than may initially appear. Rather than basing the definition on the prevalence of a disease, the category is limited to instances where the number of persons that may be tested with the device is fewer than 4,000 per year. If there are more than 4,000 persons a year who would be tested with the LDT, it would not qualify as an “LDT Used for Rare Diseases.” Perhaps a better and more descriptive name than the one chosen by the agency for this category of tests might have been “Rarely Used LDTs.”

  1. c) LDTs for Unmet Needs

Generally, “LDTs for Unmet Needs” are those used to meet urgent health care needs where there is not a comparable FDA-cleared or approved alternative. FDA has published a number of factors it will use to determine if an LDT should be considered one that is “for unmet needs.” These factors include:

  • Whether the device meets the definition of LDT in this guidance (a device designed, manufactured and used by a single laboratory);
  • Whether there is no FDA-cleared or approved IVD available for that specific intended use; and
  • Whether the LDT is both manufactured and used by a health care facility laboratory (such as one located in a hospital or clinic) for a patient that is being diagnosed and/or treated at that same health care facility or within that facility’s health care system.
  1. Highest-Risk LDTs: Highest Level of Scrutiny 

LDT’s presenting the most risk (high-risk) will be considered Class III medical devices and will be subject to the highest level of regulatory control. The premarket review requirements for these LDTs will begin twelve months after the guidance is finalized. FDA considers the highest risk LDTs to include LDTs with the same intended use as a cleared or approved companion diagnostic (i.e., those that provide essential information for the safe and effective use of a corresponding therapeutic product), LDTs with the same intended use as an FDA-approved Class III medical device; and certain LDTs for determining the safety or efficacy of blood or blood products. In most instances, these LDTs generally will require a Premarket Approval Application (PMA) and may remain on the market during the twelve month period and during the pendency of their PMA (provided it is filed within the initial twelve month period following the publication of the finalized guidance). Enforcement of the premarket review requirement for other high-risk LDTs will be phased-in over four years after finalization of the guidance.

  1. Moderate-Risk LDTs: Moderate Level of Scrutiny

Once FDA has addressed the highest-risk Class III LDTs, it will turn to the enforcement of regulatory controls for moderate-risk LDTs which will be considered to be Class II devices by the agency. FDA has yet to identify which types of LDTs will fit into this category. Presumably, the information gathered as laboratories begin complying with the notification requirement will assist the agency in making this determination and the agency has announced that it will issue a guidance to describe what it considers to be Class I, Class II and Class III devices within two years after the guidance is finalized. Beginning five years after the guidance is finalized and continuing over the four subsequent years, FDA intends to begin enforcing the premarket review process for these moderate-risk LDTs and, in most instances, will require premarket notification (510(k) clearance) for their continued marketing.

  1. QSR Compliance for High-Risk and Moderate-Risk LDTs

Compliance with the QSR will be required for both high-risk and moderate-risk LDTs. The QSR sets forth the requirements for the methods used in, and the facilities and controls used for, the design, manufacture, packaging, storage, and installation of medical devices and also includes system requirements in areas of concern to all manufacturers of finished devices.  According to the draft guidance, FDA will continue to exercise its enforcement discretion with respect to QSR compliance for LDT manufacturers of moderate-risk devices until the time that the LDT is the subject of a cleared 510(k). For high-risk LDTs that require a PMA, enforcement discretion will end at the time that the PMA is submitted to the agency for review and approval.


The trigger for when FDA will begin enforcing controls is upon the publication of the final versions of these draft guidance documents. Potentially, this could occur as soon as April 2015.  For some laboratories, the shift from operating under FDA’s enforcement discretion to being fully-regulated as a medical device manufacturer is sure to be a significant and difficult challenge. Making such a change will require these laboratories to consider, plan for, and dedicate resources to achieve compliance with FDA requirements. Even for established medical device companies, doing so is no small effort. The key to success for these laboratories will be to begin assessing how FDA’s proposed requirements will apply to their LDTs now, the burdens that they will assume, and to establish a plan to be in compliance before FDA’s enforcement discretion comes to an end.

Until such time, however, FDA is accepting comments regarding these proposed guidances from members of the public. Accordingly, firms have an opportunity to make their voices heard before FDA’s regulatory scheme comes into effect. If you believe that your own organization will be unduly burdened by this proposed regulatory scheme, we would very much encourage you to have your say while there is still a chance that you can make a difference.

[1]               21 C.F.R. Part 820.

Celebrating 35 Years of Success: USDA Practice Team

By Brett T. Schwemer

Recently, Olsson Frank Weeda Terman Matz, P.C., otherwise known as “OFW Law,” celebrated 35 years of business with colleagues, family, friends and clients.  We were extremely proud to share this milestone with those who have helped make OFW Law one of the leading firms practicing USDA and FDA law today.

Although OFW Law has expanded in other areas of law, the origin of OFW Law began in agricultural law and these roots remain strong today. Indeed, OFW Law is one of the most comprehensive agriculture law firms in the country, representing large and small companies and trade associations on a myriad of legal issues, ranging from food safety and nutrition, animal welfare and forestry, to everything in between. Together, our USDA practice team, consisting of 17 attorneys and Senior Policy Advisors, are capable of representing clients before virtually every agency of the USDA.  Our most frequent interactions involve the USDA’s Food Safety and Inspection Service (FSIS), Food Nutrition Service (FNS), Agricultural Marketing Service (AMS), Animal and Plant Health Inspection Service (APHIS), Grain Inspection, Packers and Stockyard Administration (GIPSA), Risk Management Agency (RMA) and Federal Crop Insurance Corporation (FCIC).

One attribute that makes the USDA practice team unique among its peers is its experience.  Many of our professionals have served in high level agricultural positions in the government and/ or have a long history of working in or with the agriculture/food industry   This has allowed our professionals to not only apply real world experience and technical expertise to solve difficult problems, but to identify the right contacts at USDA should issues need to be resolved at the Department.

The experience and expertise of our professionals have allowed the USDA practice team to tally many successes over the last 35 years.  We are proud to share a few of our most notable ones, as follows:

  • Our professionals have assisted numerous meat, poultry and other food clients design, implement and assess food safety, sanitation and quality control programs. With in-plant experience and training in HACCP principles, our professionals have helped clients not only comply with food safety requirements, but exceed them.
  • Our professionals have successfully assisted clients in FSIS enforcement actions (e.g., Notice of Intended Enforcement Actions, Notice of Suspensions), providing advice which has allowed clients to avoid, or minimize the duration of, plant closures.
  • Our practice team has helped numerous clients facilitate the marketing of their food and agriculture products, by assisting in obtaining government approval for new label claims and/or new ingredients/processing aids, or by helping to remove regulatory impediments for marketing their products. For example, we successfully petitioned FSIS to eliminate the standard of identity for pizza, giving frozen pizza manufacturers the flexibility to make more innovative products so they can better compete with pizzeria restaurant chains.
  • Our practice team has successfully defended meat packers, poultry slaughterers, livestock dealers and market agencies in numerous GIPSA enforcements actions under the Packers and Stockyards Act. In one case, GIPSA filed a complaint seeking over $3 million in civil penalties against a packer for failing to notify livestock sellers, prior to purchasing livestock, of a more accurate formula used for grading pork carcasses.   As a result of our representation of the packer, the Administrative Law Judge and Judicial Officer of USDA issued no civil penalties in the case.
  • Following a successful multifaceted campaign by our team, AMS rewrote the Florida Tomato Marketing Order in 2005 to permit the nationwide distribution of the UglyRipe® tomato during the regulated Florida tomato season.
  • When the Congress considered amendments to, and perhaps even repeal of, the Perishable Agricultural Commodities Act (PACA), stakeholders turned to our professionals for counsel. The amendments resulted in preservation of the fair trade statute covering all fresh and frozen fruits and vegetables with more efficient reservation of PACA Trust benefits and a stabilized funding mechanism for USDA’s PACA Branch.
  • Puerto Rico attempted to impose specific labeling requirements for shell eggs imported from outside the Commonwealth, including on the eggs themselves.  We successfully challenged the regulations in federal court at both the district and appellate levels, with the First Circuit holding that Puerto Rico’s regulation violated the Dormant Commerce Clause of the U.S. Constitution.
  • On FCIC Federal crop insurance, we have represented players on every side of the fast-growing program: approved insurance providers (AIPs), agents, farmers, product developers, and grower associations. In just one area, new insurance policies, we assisted in the approval of Livestock Risk Protection (LRP) for cattle, hogs, and lamb, margin protection for wheat and rice, oysters, barley, biotech corn, and many others. This past year, we assisted drought-hit farmers in Oklahoma and Texas on controversial claims, helped two insurance companies address oversight issues with RMA, and successfully urged changes in rules on treatment of indebted farmers.

This is a small snapshot of the long record that our group has assembled over the past 35 years, and we are very proud of it.

FDA Tweaks Its Guidance on Food Facility Registration

By Robert A. Hahn

FDA has released a revised guidance document on food facility registration: Guidance for Industry: Questions and Answers Regarding Food Facility Registration (Sixth Edition).  The revised guidance adds only one new question and answer to the 34-page guidance:

1.3 Q: [Added November 2014] Under the supplemental notice of proposed rulemaking for preventive controls for human food, FDA has proposed changing the farm definition for registration and other purposes.  Under the proposed change, a farm would no longer be required to register as a food facility solely because it packs or holds raw agricultural commodities grown on a farm under different ownership.  While the rulemaking is still ongoing, what is FDA’s policy regarding farms that also pack or hold raw agricultural commodities grown on a farm under different ownership?

A: FDA does not intend to prioritize enforcing the registration requirement in this circumstance.

This change is intended to reflect a proposed change in the definition of “farm” in FDA’s supplemental proposed rule on Preventive Controls for Human Food.  FDA is proposing that a farm that also packs or holds raw agricultural commodities (RACs) grown on another farm not under the same ownership is still a “farm” exempt from FDA registration.  This change in FDA’s position was urged by several stakeholders in the produce industry.

According to the Federal Register notice announcing the revised guidance, “FDA intends to make further updates to this guidance once certain FSMA rulemakings are final…”  If the supplemental proposed rule on Preventive Controls for Human Food is finalized as proposed, it would change the rules on FDA registration in a number of other ways.  For example, it would expand the definition of what is a “farm” exempt from FDA registration by expanding the activities by farms that would be considered “packing” or “holding” to include activities incidental to the packing of RACs (such as sorting, culling, grading, packaging, and labeling of RACs) and activities incidental to the storage of RACs (such as blending lots of the same RAC, fumigating RACs).  Again, these changes have been sought by stakeholders in the produce industry.

The revised guidance is effective immediately, but FDA accepts comments on guidance documents at any time.

Consumer-Directed Promotions About Prescription Drugs: A Look Back at Print and TV Communications

OFW Law Celebrates 35 Years of Successes in Drug/Healthcare Privacy Practices (Part VI)

By Tish Eggleston Pahl

In celebrating 35 years of practice, OFW Law’s Drugs, Biologics, and Controlled Substances and Healthcare Privacy practice groups are taking a look back to share some highlights throughout the years.  Parts I, II, III, IV and V focus on Hatch-Waxman, medical privacy laws, FDA’s user fees, prescription drug traceability and GMPs.  Today’s blog looks back at changes in the regulation of drug promotion.

As we celebrate anniversaries at OFW Law this month (the firm’s 35th and my 21st), any retrospective on the drug practice would be incomplete without recognizing our work on, and the changes to, how entities communicate with patients and consumers about prescription drugs.

We could go back to Lydia E. Pinkham’s Pills Vegetable Compound and earlier for evidence of “patent” drug promotion directly to consumers.  However, this retrospective begins in 1962, when Congress enacted the Kefauver-Harris Amendments to the FDC Act.  In addition to expanding FDA’s authority over prescription drugs, and requiring proof of safety and efficacy prior to approval and marketing, Congress also transferred from the FTC to FDA the authority over the advertising of prescription drugs.

Pursuant to that authority, in 1963, FDA initiated and finalized the rulemaking that would eventually become the familiar § 202.1 – Prescription-drug Advertisements (28 Fed. Reg. 1448 (Feb. 14, 1963); 28 Fed. Reg. 6375 (June 20, 1963).  The requirements that a prescription drug promotion be fairly balanced and accompanied by appropriate information (the full prescribing information (“PI”) for promotional labeling and a brief summary of that PI for advertising) have been with us – seemingly forever – and without substantial change.  If it seems that existing regulations don’t fit modern healthcare communications very well, look no farther than the fact that the regulations are older than both today’s popular technologies and most of the people who use them for prescription drug information.

FDA cites the early 1980’s as the point when prescription drug sponsors first began targeting patients and consumers directly – what became known as “direct-to-consumer” or “DTC” promotion.  FDA requested a voluntary moratorium on DTC prescription drug promotion on September 2, 1983 and, thereafter, undertook a series of public meetings and research.  The agency lifted the moratorium two years later (56 Fed. Reg. 36,677 (Sept. 9, 1985)), stating that it believed current regulations provided “sufficient safeguards” for consumers.

(Keep in mind, just getting copies of regulatory documents was an adventure in those days.  Paralegals with rolls of nickels and good contacts would traverse from the downtown Federal Register office to Fishers Lane and back, scrounging for documents put on public display.)

In August 1995, FDA announced the first of several public hearings on DTC-related issues (60 Fed. Reg. 42,581 (Aug. 16, 1995)).  Two questions FDA posed were of special interest: what information should accompany print promotion; and how to satisfy the disclosure requirements for broadcast advertisements.  Nearly 20 years later, these issues continue to vex prescription drug communications.

Accompanying Information in DTC Print Communications

Under 21 U.S.C. § 352(n), any print advertisement must be accompanied by “information in brief summary relating to side effect, contraindications, and effectiveness,” which FDA had interpreted in 21 C.F.R. § 202.1(e)(3)(iii) to mean “each specific side effect and contraindication” in the drug’s PI.

This meant that magazine and newspaper ads would include a page or more of solid text that reprinted most or all of the PI in a tiny font.  At the 1995 public hearing, then-FDA Associate Director for Medical Policy, Dr. Robert Temple, bluntly acknowledged that this approach for consumer-directed communications was an oxymoron:

Let’s say we all agree for the sake of argument that the current brief summary, which is neither brief nor a summary – like the Holy Roman Empire was neither holy nor an empire – isn’t very helpful.  I think you won’t find a great deal of disagreement about that among FDA staff either.

Unanimous condemnation of the PI-based brief summary in DTC promotion would continue through several more rounds of comments and FDA research that showed, unsurprisingly, that consumers found it no more useful than FDA staff did.

In 2004, FDA released the Brief Summary Draft Guidance which expressed the agency’s decision to exercise enforcement discretion and, the requirements of 21 C.F.R. § 202.1(e)(3)(iii) notwithstanding, permit and encourage abbreviated, consumer-friendly brief summaries with DTC print advertising.  Marketers implemented the draft guidance, hugely improving DTC print promotions.

Unfortunately, the agency never addressed what has, in the last 10 years, become an enormous problem in other patient-directed communications.  The Brief Summary Draft Guidance only helps DTC print advertising (e.g., magazines and newspapers) – media that are in significant decline.  The Draft Guidance does not apply to patient-directed labeling, like refill reminders and compliance and adherence communications given to patients to support their prescribed and dispensed therapy. FDA still interprets its requirements as mandating patient-directed labeling to be accompanied by the full PI, even though the agency has long acknowledged (and has the data to prove) that the PI isn’t helpful to patients.

Keeping patients compliant is an enormous, costly, and deadly public health problem and everything that can be done should be done to make these communications easier, better, and more accessible.  Since the release of the Brief Summary Draft Guidance in 2004, the agency has been urged, repeatedly, to do for patient-directed labeling what it did for DTC print advertising.  It never has.

In February, there was cause for hope when FDA’s Center for Drug Evaluation and Research (CDER) published its proposed Guidance Agenda and announced it would finalize the 2004 Brief Summary Draft Guidance.  This was good news, even if it would have little impact as so little DTC advertising remains in traditional print media and anyone still in that space adopted the consumer-friendly brief summaries years ago.  More exciting was the new title of the Guidance:

Brief Summary and Adequate Information for Use: Disclosing Risk Information in Consumer-Directed Print Advertisements and Promotional Labeling for Prescription Drugs.

(Emphasis added.)  It appears that FDA may take the opportunity the guidance provides to address the heavy disclosure burden placed upon patient-directed promotional labeling that the DTC advertising does not have to meet.  Maybe, hopefully, compliance and adherence communications patients need for the safe and effective use of their prescribed and dispensed drugs can finally be accompanied by a useful, brief summary of the PI rather than the full PI.

“Adequate Provision” for DTC Broadcast Advertisements

That seminal 1995 DTC hearing also addressed the dilemma § 202.1 posed for prescription-drug broadcast advertising.  Under 21 C.F.R. § 202.1(e)(1), sponsors of broadcast advertisements are, among other things, required to present a brief summary in the advertisement or, alternatively, must make “adequate provision … for dissemination of the approved or permitted package labeling in connection with the broadcast presentation.”

This requirement made it impossible for manufacturers to promote DTC prescription drugs in regular broadcasts.  No one knew what “adequate provision” of the PI meant.  The brief summary was too long for the typical broadcast commercial, though advertisers would scroll through a drug’s brief summary or PI at the end of video presentations made at medical conferences – a measure that was as technically compliant as it was utterly useless.

In 1997, FDA issued a Draft Guidance on Consumer-Directed Broadcast Advertisements that explained how manufacturers could make “adequate provision” for the PI in a broadcast ad.  62 Fed. Reg. 43,171 (Aug. 12, 1997).  To satisfy adequate provision requirements, a prescription drug advertisement needed to identify several mechanisms describing where a consumer could obtain the product’s PI.  These included a toll-free number, a concurrent advertisement in a print publication, and an Internet URL.  The agency finalized the Guidance in 1999.

With this new clarity, TV prescription drug ads blossomed and have been highly controversial ever since.  FDA’s Office of Prescription Drug Promotion now has an extensive procedure for voluntary, pre-dissemination advisory review of both DTC TV ads and other materials.  In March 2012, FDA issued a draft guidance addressing when and how it would use its statutory authority under the FDA Amendments Act of 2007 to review prescription drug television advertisements prior to dissemination.  The guidance was highly controversial and FDA stated it would not begin pre-dissemination review until the guidance was final.  According to CDER’s agenda discussed above, this guidance is also slated to be released in final in 2014.

* * *

As we draw to the end of the year and continue celebrating OFW Law’s anniversary, we’re still waiting on the Brief Summary Guidance that will – we hope – resolve a problem that has vexed patient-directed compliance communications for decades.  If we do see the final guidance on pre-dissemination review of DTC TV ads in 2014, it should make for interesting reading given the vociferous objections to the draft guidance.  With so many marketers turning away from traditional media, we do wonder how much it will matter.  We’ll look at that next generation – prescription drug promotion in social media – in another retrospective coming soon.

Feed the Future: A Bipartisan Opportunity

By Marshall L. Matz, as published in Agri-Pulse

The “Feed the Future” initiative is aimed at improving agriculture productivity and economic development around the world. Bipartisan legislation has been introduced in the both the House and Senate to make this discretionary program permanent. The legislation (H.R. 5656; S.2909) has the support of private sector corporations as well as non-profit public interest organizations.  To use an old phrase, the initiative teaches people how to fish rather than just distributing fish. It deserves our attention.

For generations, the United States has been a leader in providing agriculture development assistance across the globe to alleviate suffering and build shared progress and prosperity. But global food price spikes and resulting instability in 2007 and 2008 were a wake-up call that more needed to be done.

Feed the Future was borne out of President Obama’s pledge at the 2009 G-8 Summit in L’Aquila to mobilize at least $3.5 billion towards global food security—spurring commitments of $18.5 billion from other donors. But the United States has, in fact, thanks to tremendous bipartisan support, surpassed its goal and committed $5 billion in the fight to end hunger and malnutrition.

In 2010, the Administration launched “Feed the Future” (FTF), an initiative designed to expand and better coordinate the United States’ investments in improving global food security. Feed the Future is a whole-of-government approach from USDA to AID and State. It focuses on the dual objectives of improving farmer productivity, income, and livelihoods in developing countries while fighting hunger with a special focus on women and children in particular.

On September 18, 2014 Chairman Chris Smith with Rep. Betty McCollum in the House introduced the Global Food Security Act of 2014 in the House. In the Senate, the legislation was introduced by Senators Casey and Johanns with Senators Coons, Isakson, Cardin and Boozman.

The Global Food Security Act is based on the premise that global food insecurity impacts not only the economies of developing nations but also the international economy and U.S. national security. The bill recognizes the key role that agriculture development plays in economic growth.

There is broad bipartisan support for sustaining Feed the Future due in large part to tremendous gains made over the past few years—

WORLDWIDE: Last year, Feed the Future helped more than 7 million smallholder farmers’ access new tools and technologies to help them improve yields and boost incomes. Feed the Future also reached 12.5 million children with nutrition interventions.

ZAMBIA: Feed the Future played a key role in the record maize harvest for the 2013/14 cropping season (3.4 million metric tons – a 32 percent increase over the previous year’s total) through policy advocacy and by helping smallholder farmers’ access agricultural inputs such as improved seeds and fertilizers through private sector providers.

ETHIOPIA: Feed the Future and other U.S. Government programs are making progress toward achieving real reductions in stunting in Ethiopia. A recent nationwide survey shows stunting rates declined by over 9 percent over the past three years, even as the population grew, resulting in 160,000 fewer stunted children.

HONDURAS: More than 4,300 families are now well above the $1.25-per-day poverty line, thanks in part to Feed the Future’s efforts, which increased horticulture sales by 125 percent last year.

BANGLADESH: Feed the Future reached 3.3 million smallholder farmers with improved seed, fertilizer and farm management practices, helping farmers increase rice yields by as much as 20 percent and creating additional rice sales of $25 million.

SENEGAL: Feed the Future introduced a new breed of high-yielding, high-protein rice that helps smallholder farmers’ triple yields in a single year.

TANZANIA: Feed the Future helped increase horticulture yields by 44 percent and rice yields by more than 50 percent among farmers. The initiative assisted the Government of Tanzania in its efforts to turn the nation’s fertile south into a breadbasket.

Dr. Raj Shah, AID Administrator

Dr. Raj Shah, AID Administrator

“Through Feed the Future, we are harnessing the power of science, technology and innovation to unlock opportunities in agriculture for the world’s most vulnerable people,” said USAID Administrator Dr. Rajiv Shah. “By creating and scaling cutting-edge solutions to our most pressing agricultural challenges, we can help the world’s most vulnerable people move from dependency to self-sufficiency—and out of the tragic cycle of extreme poverty.”

USDA’s expertise is also critical in this effort. From research and extension to market development and trade, USDA must play a central role for Feed the Future to be successful.

Secretary Vilsack has executed a Memorandum of Understanding with the Alliance for a Green Revolution in Africa to help transfer research and extension expertise and that is a building block for Feed the Future.

Feed the Future is not just a commitment of money, it is a new multi-department approach. Instead of merely providing food aid in times of crises, it establishes a new model to turn agriculture into a business—one that especially works for women.

In short, the Global Food Security Act of 2014, the Smith (R-NJ) -Casey (D-PA) -Johanns (R-NE) legislation, compliments the successful PEPFAR program initiated by President Bush and uses our expertise in agriculture as the best possible foreign policy. The Global Food Security Act of 2014 presents an excellent opportunity to come together behind a piece of bipartisan legislation that puts our best foot forward as a country.

Marshall Matz, formerly Counsel to the Senate Committee on Agriculture, specializes in global food security at OFW Law. He serves on the Board of Directors of the World Food Program—USA; the Congressional Hunger Center; and the Food Research Action Center (FRAC).

Family Farms in Africa

By Marshall L. Matz and Peter B. Matz, as published by the National Farmers Union

Kudos to National Farmers Union for recognizing the link between family farming and meeting the challenge of global food security. Family farms are indeed the key to ending world hunger.

First, for purposes of this blog, let’s define a smallholder farmer as anyone tilling less than two hectares, or 5 acres. In most of the world, family farming means smallholder farming, usually by women.

Africa is an important case in point. Let’s look at some numbers—

  • Half of all the underutilized and unused agriculture land in the world is in Africa;
  • 65% of all Africans are involved in farming and food production;
  • 70% of disposable income is spent on food;
  • Most of the smallholder farmers are women using a hoe; and
  • Yields for maize are 20 bushels per acre, or one ton per hectare.

These numbers paint the picture of a significant challenge, but they also demonstrate a major opportunity. African farming is on the cusp of great change and its own unique green revolution. African farmers can double production in the next five years and triple production in the next ten.

The technology is coming on line. Seeds are being created for Africa’s climate and soil. Markets are developing and iPhones are being used for extension services (Africa is very advanced in communication technology).  Soil health is a priority. And the African Union, with the support of the G-7 and G-20, has made agriculture a priority for all African nations. Several African nations are very close to being self sufficient in food production.

U.S.-Africa Ag ComparisonIn the U.S., technology is a modern tractor with GPS and an air-conditioned cab, which is connected to the Chicago Board of Trade. In Africa, “technology” is a rope that shows farmers how far to space out rows and seeds, and how far from the seeds to put the fertilizer. The biggest challenge in Africa is getting the new technology to smallholder farmers and teaching them what to do with it.

That is where the “agro-dealer” has stepped in. Agro-dealers are private sector businesses located in rural villages that sell hybrid seeds, fertilizers and other inputs to smallholder farmers. They also conduct classes for the farmers…the African extension service. There are now some 20,000 agro-dealers in the key countries that comprise Africa’s two major bread baskets. We need 200,000 agro-dealers.

Much of the progress in Africa is being coordinated by the Alliance for a Green Revolution in Africa (AGRA). AGRA was started less than ten years ago by the Gates and Rockefeller Foundations, and was originally chaired by former United Nations Secretary General Kofi Annan. Mr. Annan is now the Chair Emeritus and the current chairman is Strive Masiyiwa. Mr. Masiyiwa is also chairman of the telecommunications giant Econet, but is the first to say that agriculture is the key to Africa’s economic development.

And that brings us to the last point: Increasing production for smallholder farmers is the way to eliminate hunger, but it is also the way for Africa to grow itself out of poverty. Six of the ten fastest growing countries in the world are in Africa. Africa holds the key to the future on many levels. It is important for the U.S. to recognize this and continue establishing/improving economic and political relations with Africa’s 54 countries—which comprise 25% of all the votes in the United Nations. African farmers are on the rise, and so is Africa.