[Federal Register: December 19, 2002 (Volume 67, Number 244)]

[Rules and Regulations]               

[Page 77668-77675]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr19de02-5]                         





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DEPARTMENT OF HEALTH AND HUMAN SERVICES





Food and Drug Administration





21 CFR Parts 314 and 320





[Docket No. 98N-0778]

RIN 0910-AC47





 

Bioavailability and Bioequivalence Requirements; Abbreviated 

Applications; Final Rule





AGENCY:  Food and Drug Administration, HHS.





ACTION:  Final rule.





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SUMMARY:  The Food and Drug Administration (FDA) is amending its 

regulations on bioavailability and bioequivalence and on the content 

and format of an abbreviated application to reflect current FDA policy 

and to correct certain typographical and inadvertent errors. This 

action is intended to improve the accuracy and clarity of the 

regulations.





DATES:  This rule is effective February 18, 2003.





FOR FURTHER INFORMATION CONTACT:  Christine F. Rogers, Center for Drug 

Evaluation and Research (HFD-7), Food and Drug Administration, 5600 

Fishers Lane, Rockville, MD 20857, 301-594-2041.





SUPPLEMENTARY INFORMATION:





I. Background





    FDA regulations require persons submitting a new drug application 

(NDA) to provide bioavailability information (21 CFR 314.50(c)(2)(vi) 

and (d)(3)), and persons submitting an abbreviated new drug application 

(ANDA) to provide information pertaining to bioavailability and 

bioequivalence (Sec.  314.94(a)(7) (21 CFR 314.94(a)(7)).

    FDA regulations in part 320 (21 CFR part 320) establish definitions 

and requirements for bioavailability and bioequivalence studies. FDA 

finalized the bioavailability and bioequivalence regulations on January 

7, 1977 (42 FR 1624), and amended these regulations on April 28, 1992 

(57 FR 17950). The 1992 amendments were designed to reflect statutory 

changes resulting from the Drug Price Competition and Patent Term 

Restoration Act of 1984 (Public Law 98-417).

    In the Federal Register of November 19, 1998 (63 FR 64222), FDA 

proposed to revise its regulations on bioavailability and 

bioequivalence and the content and format of an ANDA to reflect current 

FDA policy and to correct certain typographical and inadvertent errors 

(the proposed rule). The publication of this final rule completes this 

rulemaking.





II. Description of the Final Rule





    FDA is finalizing the proposed rule with the following revisions 

made in response to comments received on the proposal.

    As proposed, the final rule changes the term ``enteric coated'' to 

``delayed release'' and the term ``controlled release'' to ``extended 

release'' in Sec.  320.22(c). To conform to this change, the final rule 

also amends Sec. Sec.  320.1, 320.22(d)(2)(iv), 320.25(f), 

320.27(a)(3)(iv), 320.27(b)(2), 320.28, and 320.31 by changing 

``controlled release'' to ``extended release.'' To conform to the new 

terminology, the final rule also amends Sec.  320.25(f) by changing 

``noncontrolled release'' to ``nonextended release.''

    The following new first sentence has been added to redesignated 

Sec.  320.25(a)(2): ``An in vivo bioavailability study is generally 

done in a normal adult population under standardized conditions.'' This 

sentence is a necessary lead-in for the existing text that refers to 

situations in which





[[Page 77669]]





bioavailability studies may be conducted in patients.

    The proposed rule would have revised Sec.  320.26(b)(2)(i) to 

require a customary drug elimination period of five times, rather than 

at least three times, the half-life of the active drug ingredient or 

therapeutic moiety, or its active metabolite(s). In response to a 

comment pointing out that a drug elimination period of five half-lives 

may be impractically long for a drug with a long half-life, the agency 

has decided not to revise Sec.  320.26(b)(2)(i).

    The proposed rule would have revised Sec.  320.27(d)(1) and (d)(2) 

to state that blood or urine samples should be taken on 3 or more 

consecutive days to establish that steady-state conditions have been 

achieved. Some comments stated that obtaining samples on consecutive 

days may be impractical and, for drugs with long half-lives, may be 

less sensitive to the establishment of steady state than data obtained 

over a longer period of time. The final rule requires that 

``appropriate dosage administration and sampling should be carried out 

to document steady state.'' Specific advice about dosage administration 

and sampling may be obtained from the appropriate review division for 

the drug product.





III. Comments on the Proposed Rule





    The agency received seven comments from pharmaceutical companies, 

pharmaceutical company trade associations, and a law firm.





A. Inactive Ingredients





    Section 314.94(a)(9) establishes information requirements for the 

chemistry, manufacturing, and controls section of an abbreviated 

application. Section 314.94(a)(9)(ii) through (v) provides that an 

abbreviated application may have different inactive ingredients than 

the reference listed drug as long as the applicant identifies and 

characterizes the inactive ingredients in the proposed drug product and 

provides information demonstrating that the inactive ingredients do not 

affect the safety of the drug product. The agency proposed to amend 

this section to recognize the possibility that the use of different 

inactive ingredients can also affect a product's efficacy.

    (Comment 1) We received several comments about the addition of the 

word ``efficacy.'' One comment said this change is unnecessary because 

demonstrating bioequivalence provides proof of efficacy. One comment 

interpreted the change as suggesting that FDA is departing from its 

position that bioequivalence shows that the generic product is as 

effective as its reference listed drug. This comment asked what 

additional proof of effectiveness FDA would require. One comment agreed 

with the proposed change and asked that it apply to pending ANDA's. 

This comment also stated that animal tests should not be used to 

demonstrate that different inactive ingredients do not affect safety or 

efficacy because the act prohibits the use of animal or clinical 

studies to establish that the drug is safe or effective. Another 

comment expressed concern that the need to show that a different 

inactive ingredient does not affect safety or efficacy makes it more 

difficult to get approval for a generic topical drug product because 

clinical trials must be conducted.

    As stated in the proposed rule, by adding the word ``efficacy,'' 

the agency acknowledges the possibility that the use of different 

inactive ingredients can also affect a product's efficacy. FDA is not 

departing from its position that a generic product that demonstrates 

bioequivalence to the reference listed drug has shown that it is as 

effective as that reference listed drug.

    The agency disagrees with the comment stating the animal tests 

should not be used in the process of assessing the safety or efficacy 

of inactive ingredients that differ from those in the reference listed 

drug. In the preamble to the proposed ANDA regulations, the agency 

suggested that data from animal studies might be used as limited 

confirmatory testing to support an ANDA suitability petition or an ANDA 

resulting from such a petition (54 FR 28872 at 28880, July 10, 1989). 

The preamble cited as an example the use of limited confirmatory 

testing to show that an approved change in an active ingredient did not 

have acute effects on the safety of the product. In similar fashion, 

animal studies may be useful and appropriate to assist FDA in 

evaluating the safety or the effect on efficacy of a changed inactive 

ingredient.

    Section 314.127 (21 CFR 314.127) lists the reasons why FDA will 

refuse to approve an ANDA. The agency proposed to revise Sec.  

314.127(a)(8) to clarify that, consistent with current FDA policy, the 

applicant must show that different inactive ingredients would not 

affect a product's efficacy.

    (Comment 2) One comment stated that the proposed change is 

consistent with FDA's current policy when applied to parenteral and 

ophthalmic dosage forms, but otherwise is inconsistent with current 

policy. Another comment said this change is unnecessary because 

demonstrating bioequivalence provides proof of efficacy.

    As stated in the proposed rule, and in the response to the previous 

comment, the addition of the word ``efficacy'' simply clarifies the 

current FDA approach rather than effecting a substantive change.





B. Pharmaceutical Equivalents





    Proposed Sec.  320.1(c) revised the definition of ``pharmaceutical 

equivalents'' with regard to drug products that contain a reservoir 

that facilitates delivery or where residual volume may vary.

    (Comment 3) One comment approved of the change. The final rule is 

unchanged from the proposed rule.





C. Manufacturing Site Change





    Section 320.21(c)(1) provides that any person submitting a 

supplemental application to FDA must provide evidence or information 

regarding the product's bioavailability or bioequivalence if the 

supplemental application proposes ``[a] change in the manufacturing 

process, including a change in product formulation or dosage strength, 

beyond the variations provided for in the approved application.'' The 

agency proposed to amend this provision to include a change in the 

manufacturing site because such a change may affect the bioavailability 

or bioequivalence of the drug product because of equipment, personnel, 

or environmental changes.

    (Comment 4) Several comments asserted that this proposed change is 

inconsistent with FDA's guidance ``Immediate Release Solid Oral Dosage 

Forms--Scale-Up and Post-Approval Changes: Chemistry, Manufacturing and 

Controls; In Vitro Dissolution Testing and In Vivo Bioequivalence 

Documentation'' (November 1995) (SUPAC-IR guidance), which does not 

specify a demonstration of bioequivalence for level 1-3 changes. The 

comments recommended that any change to the regulation be consistent 

with the SUPAC-IR guidance.

    FDA believes that this change is consistent with the SUPAC-IR 

guidance. The SUPAC-IR guidance describes the levels of changes, 

recommended tests, and filing documentation that ensure continuing 

product quality and performance characteristics of an immediate release 

dosage form for specific postapproval changes. Depending on the level 

of change and the solubility and permeability characteristics of the 

active drug substance, the SUPAC-IR guidance recommends different 

levels of in vitro dissolution tests and/or in vivo bioequivalence 

studies. The addition of a change in the manufacturing site to





[[Page 77670]]





Sec.  320.21(c)(1) does not mean that the agency would require an in 

vivo demonstration of bioequivalence in the circumstances provided for 

in the SUPAC-IR guidance. For manufacturing site changes, dissolution 

testing alone is generally sufficient to ensure unchanged product 

quality and performance for an immediate release solid oral dosage 

form. FDA expects to continue to follow the SUPAC-IR guidance in 

implementing Sec.  320.21(c)(1) as revised.





D. Delayed Release and Extended Release Terminology





    The agency proposed to amend Sec.  320.22(c) to change ``enteric 

coated'' to ``delayed release'' and ``controlled release'' to 

``extended release.''

    (Comment 5) One comment stated that these terms should also be 

replaced in Sec.  320.22(d)(2)(iv).

    FDA agrees with this comment. The final rule amends Sec.  

320.22(d)(2)(iv) by changing ``enteric coated'' to ``delayed release'' 

and ``controlled release'' to ``extended release.'' The final rule also 

amends Sec. Sec.  320.1, 320.25(f), 320.27(a)(3)(iv), 320.27(b)(2), 

320.28, and 320.31 by changing ``controlled release'' to ``extended 

release.'' To conform to these changes, the final rule also amends 

Sec.  320.25(f) by changing ``noncontrolled release'' to ``nonextended 

release.''





E. Bioavailability Is Measured





    Section 320.24 describes the types of evidence needed to establish 

bioavailability or bioequivalence. Instead of stating that 

bioavailability is demonstrated or established, the agency proposed to 

use the word ``measured.''

    (Comment 6) One comment objected to this across-the-board change, 

asserting that it is not possible to get a quantitative measure of 

bioavailability from an acute pharmacological effect, a well-controlled 

clinical trial, or an in vitro test. The comment suggested that the 

words ``demonstrated'' or ``established'' be used in discussing these 

types of evidence.

    FDA disagrees with this comment. Bioavailability is an 

observational measure that always results in a quantitative figure. 

Therefore, the final rule will remain as it was proposed.





F. Subjects for Bioavailability Studies





    The agency proposed to remove Sec.  320.25(a)(2) and redesignate 

Sec.  320.25(a)(3) as Sec.  320.25(a)(2). Current Sec.  320.25(a)(2) 

provides in part that ``[a]n in vivo bioavailability study shall not be 

conducted in humans if an appropriate animal model exists and 

correlation of results in animals and humans has been demonstrated.''

    (Comment 7) One comment proposed the following new first sentence 

for redesignated Sec.  320.25(a)(2): ``An in vivo bioavailability study 

shall ordinarily be done in normal adults under standardized 

conditions.'' The comment stated that this sentence is a necessary 

lead-in for the existing text that refers to situations in which 

bioavailability studies may be conducted in patients.

    FDA agrees with this comment and has included similar language in 

the final rule.





G. Drug Elimination Period





    Proposed Sec.  320.26(b)(2)(i) stated that the customary drug 

elimination period should be five times the half-life of the active 

drug ingredient or therapeutic moiety, or its active metabolite(s).

    (Comment 8) FDA received several comments on this section. One 

comment approved of the change from the three half-lives in the current 

regulation, while another comment recommended four half-lives. One 

comment disagreed with using half-life multiples to establish the 

duration of sampling because the terminal half-life is a function of 

the study design and the sensitivity of the assay and, in many cases, 

represents the elimination of small amounts of drug from deep 

compartments. In those cases, a five half-life requirement may greatly 

overestimate the time needed to measure the area under the curve (AUC) 

extrapolated to infinity. The comment recommended that the rule state: 

``The duration of blood sampling should be adequate to insure that the 

measured AUC represents at least 90% of AUC (infinity)'' (AUC[infin]). 

Another comment, noting that many drugs exhibit multiexponential serum 

concentration-time profiles, asked FDA to substitute ``97% of the 

AUC[infin]'' for ``five times the half-life.''

    The agency recognizes that for a drug with a long half-life, a drug 

elimination period of five half-lives may be impractically long. FDA 

has concluded that a drug elimination period of three half-lives, which 

characterizes approximately 88 percent of the AUC[infin], is sufficent. 

Therefore, the final rule leaves Sec.  320.26(b)(2)(i) unchanged.

    (Comment 9) One comment suggested that Sec.  320.26(b)(2) should 

use an alternative phrase such as ``washout period'' or ``time between 

dosings'' rather than the term ``drug elimination period'' because that 

term could be confused with the concept of drug elimination. FDA 

disagrees with this comment. The term ``drug elimination period'' has 

been used in Sec.  320.26(b)(2) since the bioequivalence regulations 

were finalized in 1992, and the agency has not found that it causes 

confusion. Drug elimination is the metabolic process that eliminates 

the drug from the body. The drug elimination period is the time allowed 

for subjects to clear the first drug from the body before giving the 

second drug. The term ``drug elimination period'' is retained in the 

final rule.





H. Sampling to Establish Steady State





    Proposed Sec.  320.27(d)(1) and (d)(2) would have required sampling 

on 3 or more consecutive days to establish that steady-state conditions 

have been achieved whenever comparison of the test product and the 

reference material is to be based on blood concentration-time curves at 

steady state or urinary excretion-time curves at steady state.

    (Comment 10) Several comments suggested deleting the word 

``consecutive'' from Sec.  320.27(d)(1). One comment stated that drugs 

with long half-lives accumulate slowly and the use of data from 

consecutive days for such drugs is less sensitive to the establishment 

of steady state than data obtained over a longer period of time. 

Another comment said that the 3-consecutive-day requirement is often 

not practical, particularly for urinary collection, and proposed dosing 

drugs for five to six half-lives or 1 week, whichever is longer, and 

then sampling blood or urine over one dosing interval.

    One comment agreed that it is appropriate to obtain samples on 3 or 

more consecutive days. This comment stated that sometimes predose blood 

concentrations may be below the limit of quantitation; then it would 

not be possible to confirm attainment of steady state. The comment 

recommended that the predose collection time should be at a time when 

the blood drug concentrations are in the reliable range of quantitation 

of the assay and will be identical on all 3 days for all subjects.

    Another comment stated that the proposed change to Sec.  

320.27(d)(1) reflects current practice, but that the requirement for 

consecutive-day data in Sec.  320.27(d)(2) is unnecessarily 

restrictive. This comment proposed eliminating the word ``consecutive'' 

and instead saying ``to define adequately the predose blood 

concentration on 3 or more days (or doses) to establish that steady-

state conditions are achieved.''

    The agency has carefully considered these comments and has decided 

not to require that sampling be done on 3 or more consecutive days. 

Therefore, FDA has revised Sec.  320.27(d)(1) and (d)(2) to state that 

``* * * appropriate dosage administration and sampling should be 

carried out to document attainment of steady state.''





[[Page 77671]]





    Current Sec.  320.27(d)(1) requires that blood sampling be 

sufficient to define both the minimum (Cmin) and maximum (Cmax) blood 

concentrations on 2 or more consecutive days to establish that steady-

state conditions have been achieved. The preamble to the proposed rule 

explained that one of the reasons the agency proposed to revise Sec.  

320.27(d)(1) is that FDA no longer uses Cmax values to determine 

steady-state conditions. The proposed rule also stated that, in some 

cases, the predose trough level may not be the observed Cmin value.

    (Comment 11) One comment stated that the agency's proposal to 

revise Sec.  320.27(d)(1) appeared contradictory because it would 

require that trough samples be measurable in order to establish steady 

state. The comment stated: ``The Agency should address these drugs (or 

drug products) which have a relatively short half-life (relative to the 

pharmacodynamic effect and dosing interval). Is it still acceptable to 

measure only trough values when the concentrations are less than the 

analytical lower limit of quantitation?''

    As discussed in the response to comment 10, the agency is not 

revising Sec.  320.27(d)(1) as set forth in the proposed rule. Instead, 

the final rule revises Sec.  320.27(d)(1) to state that ``* * * 

appropriate dosage administration and sampling should be carried out to 

document attainment of steady state.'' This revision will permit the 

sampling schedule used to document steady state to be tailored to the 

characteristics of the drug being studied. Specific questions about the 

appropriateness and design of multiple-dose studies should be directed 

to the appropriate review division in the Office of New Drugs or to the 

Office of Generic Drugs.





I. Addition of Bioequivalence





    The proposed rule added the words ``or bioequivalence'' after the 

word ``bioavailability'' in the section heading of Sec.  320.27 and 

throughout the section.

    (Comment 12) One comment pointed out that the preamble to the 

proposed rule did not discuss the addition of the words ``or 

bioequivalence'' to Sec.  320.27(e)(3). The comment has caused the 

agency to reconsider its proposal to amend Sec.  320.27 to apply to 

bioequivalence as well as bioavailability. Section 320.27 discusses 

circumstances in which multiple-dose studies may be needed. FDA's 

current scientific thinking is that single-dose pharmacokinetic studies 

are preferable to multiple-dose studies to demonstrate bioequivalence 

because they are generally more sensitive in assessing release of the 

drug substance from the drug product into the systemic circulation. 

Accordingly, the agency has decided not to add the words ``or 

bioequivalence'' to Sec.  320.27.





J. Additional Definitions





    Proposed Sec.  320.29(a) added the words ``or bioequivalence'' 

after the word ``bioavailability'' to the discussion of the analytical 

method used in an in vivo study.

    (Comment 13) One comment asked FDA to revise Sec.  320.29(a) to 

include several definitions. The comment suggested that ``active'' 

metabolite should be defined because the concept is vague and many 

metabolites that are present in low concentrations may not contribute 

to the overall activity of the drug. In addition, the comment stated 

that FDA should define active metabolites with respect to their 

activity relative to the parent drug and relative concentration. This 

comment also asked FDA to define the ``sufficient sensitivity'' that is 

required to measure the active drug and/or metabolites. The comment 

said that it is reasonable to expect laboratories to provide a 

calibration range that provides a 32-fold range (5 half-lives) from the 

mean Cmax to the lower limit of quantitation, and this range is more 

than adequate to define more than 95 percent of the plasma AUC.

    FDA declines to add definitions of these concepts to Sec.  

320.29(a). Ascertaining the active metabolite can be a complex matter 

that requires a case-by-case approach rather than a regulatory 

definition. In October 2000, the agency published a guidance entitled 

``Bioavailability and Bioequivalence Studies for Orally Administered 

Drug Products--General Considerations'' that discusses moieties that 

should be measured in bioavailability and bioequivalence studies.





K. Miscellaneous Changes





    The final rule replaces the period at the end of Sec.  

320.22(b)(3)(i) with a semicolon and the word ``and''.

    The proposed rule added to Sec.  320.22(b)(3)(i) the language ``a 

solution for aerosolization or nebulization, a nasal solution.'' To 

conform to this change, the final rule adds language to Sec.  

320.22(b)(3)(iii) to indicate that products intended to act locally 

such as a solution for aerosolization or nebulization or a nasal 

solution should not contain an inactive ingredient or other change in 

formulation from the drug product that is the subject of the approved 

full new drug application or abbreviated new drug application that may 

significantly affect systemic or local availability.

    The proposed rule added the word ``active'' before the word 

``metabolite(s)'' in Sec.  320.27(b)(3)(i). To conform to this 

addition, the final rule amends Sec.  320.29 to add the word ``active'' 

before the word ``metabolite(s).''





IV. Environmental Impact





    The agency has determined under 21 CFR 25.30(h) through (k) that 

this action is of a type that does not individually or cumulatively 

have a significant effect on the human environment. Therefore, neither 

an environmental assessment nor an environmental impact statement is 

required.





V. Analysis of Impacts





    FDA has examined the impacts of the final rule under Executive 

Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612). 

Executive Order 12866 directs agencies to assess all costs and benefits 

of available regulatory alternatives and, when regulation is necessary, 

to select regulatory approaches that maximize net benefits (including 

potential economic, environmental, public health and safety, and other 

advantages; distributive impacts; and equity). The agency believes that 

this final rule is consistent with the regulatory philosophy and 

principles identified in the Executive order. The final rule amends the 

bioavailability and bioequivalence regulations to reflect current FDA 

policy. Thus, the final rule is not a significant action as defined by 

the Executive order.

    The Regulatory Flexibility Act requires agencies to analyze 

regulatory options to minimize any significant impact on a substantial 

number of small entities. The agency certifies that the final rule 

would not have a significant impact on a substantial number of small 

entities because the final rule merely amends the bioavailability and 

bioequivalence regulations to reflect current FDA practice. Therefore, 

under the Regulatory Flexibility Act, no further analysis is required.

    Section 202(a) of the Unfunded Mandates Reform Act of 1995 (Public 

Law 104-4) requires that agencies prepare a written statement of 

anticipated costs and benefits before proposing any rule that may 

result in an expenditure by State, local, and tribal governments, in 

the aggregate, or by the private sector, of $100 million or more in any 

one year (adjusted annually for inflation). The Unfunded Mandates 

Reform Act does not require FDA to prepare a statement of costs and 

benefits for the final rule because the rule is not





[[Page 77672]]





expected to result in any 1-year expenditure that would exceed $100 

million adjusted for inflation. The current inflation-adjusted 

statutory threshold is $110 million.





VI. Paperwork Reduction Act of 1995





    FDA concludes that this final rule does not require information 

collections subject to review by the Office of Management and Budget 

(OMB) under the Paperwork Reduction Act of 1995 (Public Law 104-13).





VII. Executive Order 13132: Federalism





    FDA has analyzed this final rule in accordance with the principles 

set forth in Executive Order 13132. FDA has determined that the rule 

does not contain policies that have substantial direct effects on the 

States, on the relationship between National Government and the States, 

or on the distribution of power and responsibilities among the various 

levels of government. Accordingly, the agency has concluded that the 

rule does not contain policies that have federalism implications as 

defined in the Executive order and, consequently, a federalism summary 

impact statement is not required.





List of Subjects





21 CFR Part 314





    Administrative practice and procedure, Confidential business 

information, Drugs, Reporting and recordkeeping requirements.





21 CFR Part 320





    Drugs, Reporting and recordkeeping requirements.





    Therefore, under the Federal Food, Drug, and Cosmetic Act and the 

authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 

314 and 320 are amended as follows:





PART 314--APPLICATIONS FOR FDA APPROVAL TO MARKET A NEW DRUG





    1. The authority citation for 21 CFR part 314 continues to read as 

follows:





    Authority:  21 U.S.C. 321, 331, 351, 352, 353, 355, 355a, 356, 

356a, 356b, 356c, 371, 374, 379e.

    2. Section 314.94 is amended in paragraph (a)(9)(ii) and the second 

sentence of paragraphs (a)(9)(iii) and (a)(9)(iv) by adding the phrase 

``or efficacy'' after the word ``safety'' each time it appears, and by 

revising paragraph (a)(9)(v) to read as follows:









Sec.  314.94   Content and format of an abbreviated application.





* * * * *

    (a) * * *

    (9) * * *

    (v) Inactive ingredient changes permitted in drug products intended 

for topical use. Generally, a drug product intended for topical use, 

solutions for aerosolization or nebulization, and nasal solutions shall 

contain the same inactive ingredients as the reference listed drug 

identified by the applicant under paragraph (a)(3) of this section. 

However, an abbreviated application may include different inactive 

ingredients provided that the applicant identifies and characterizes 

the differences and provides information demonstrating that the 

differences do not affect the safety or efficacy of the proposed drug 

product.

* * * * *









Sec.  314.127   [Amended]





    3. Section 314.127 Refusal to approve an abbreviated new drug 

application is amended in paragraph (a)(8)(ii)(A) introductory text and 

in paragraphs (a)(8)(ii)(B) and (a)(8)(ii)(C) by adding the phrase ``or 

efficacy'' after the word ``safety'' each time it appears.





PART 320--BIOAVAILABILITY AND BIOEQUIVALENCE REQUIREMENTS





    4. The authority citation for 21 CFR part 320 continues to read as 

follows:





    Authority:  21 U.S.C. 321, 351, 352, 355, 371.

    5. Section 320.1 is amended in paragraph (e) by removing the word 

``controlled'' and adding in its place the word ``extended'' and by 

revising paragraph (c) to read as follows:









Sec.  320.1   Definitions.





* * * * *

    (c) Pharmaceutical equivalents means drug products in identical 

dosage forms that contain identical amounts of the identical active 

drug ingredient, i.e., the same salt or ester of the same therapeutic 

moiety, or, in the case of modified release dosage forms that require a 

reservoir or overage or such forms as prefilled syringes where residual 

volume may vary, that deliver identical amounts of the active drug 

ingredient over the identical dosing period; do not necessarily contain 

the same inactive ingredients; and meet the identical compendial or 

other applicable standard of identity, strength, quality, and purity, 

including potency and, where applicable, content uniformity, 

disintegration times, and/or dissolution rates.

* * * * *

    6. Section 320.21 is amended by:

    a. Removing paragraph (d)(1);

    b. Redesignating paragraphs (d)(2) and (d)(3) as paragraphs (d)(1) 

and (d)(2), respectively;

    c. Revising newly redesignated paragraphs (d)(2)(i) and (d)(2)(ii); 

and

    d. Revising paragraphs (a)(1), (a)(2), (b)(1), (b)(2), (c)(1), (e), 

and (f), paragraph (g) introductory text, and paragraphs (g)(2) and 

(h).

    The revisions read as follows:









Sec.  320.21   Requirements for submission of in vivo bioavailability 

and bioequivalence data.





    (a) * * *

    (1) Evidence measuring the in vivo bioavailability of the drug 

product that is the subject of the application; or

    (2) Information to permit FDA to waive the submission of evidence 

measuring in vivo bioavailability.

    (b) * * *

    (1) Evidence demonstrating that the drug product that is the 

subject of the abbreviated new drug application is bioequivalent to the 

reference listed drug (defined in Sec.  314.3(b) of this chapter); or

    (2) Information to show that the drug product is bioequivalent to 

the reference listed drug which would permit FDA to waive the 

submission of evidence demonstrating in vivo bioequivalence as provided 

in paragraph (f) of this section.

    (c) * * *

    (1) A change in the manufacturing site or a change in the 

manufacturing process, including a change in product formulation or 

dosage strength, beyond the variations provided for in the approved 

application.

* * * * *

    (d) * * *

    (2) * * *

    (i) Evidence measuring the in vivo bioavailability and 

demonstrating the in vivo bioequivalence of the drug product that is 

the subject of the application; or

    (ii) Information to permit FDA to waive measurement of in vivo 

bioavailability.

    (e) Evidence measuring the in vivo bioavailability and 

demonstrating the in vivo bioequivalence of a drug product shall be 

obtained using one of the approaches for determining bioavailability 

set forth in Sec.  320.24.

    (f) Information to permit FDA to waive the submission of evidence 

measuring the in vivo bioavailability or demonstrating the in vivo 

bioequivalence shall meet the criteria set forth in Sec.  320.22.

    (g) Any person holding an approved full or abbreviated new drug 

application shall submit to FDA a supplemental application containing 

new evidence measuring the in vivo bioavailability or demonstrating the 

in vivo





[[Page 77673]]





bioequivalence of the drug product that is the subject of the 

application if notified by FDA that:

* * * * *

    (2) There are data measuring significant intra-batch and batch-to-

batch variability, e.g., plus or minus 25 percent, in the 

bioavailability of the drug product.

    (h) The requirements of this section regarding the submission of 

evidence measuring the in vivo bioavailability or demonstrating the in 

vivo bioequivalence apply only to a full or abbreviated new drug 

application or a supplemental application for a finished dosage 

formulation.

    7. Section 320.22 is amended by revising paragraph (a), the second 

sentence of paragraph (b) introductory text, paragraphs (b)(1)(ii), 

(b)(2)(ii), (b)(3)(i), (b)(3)(ii), (b)(3)(iii), and (c), paragraph (d) 

introductory text, paragraphs (d)(2)(i), (d)(2)(iv), and (d)(4)(i), and 

the first sentence of paragraph (e) to read as follows:









Sec.  320.22   Criteria for waiver of evidence of in vivo 

bioavailability or bioequivalence.





    (a) Any person submitting a full or abbreviated new drug 

application, or a supplemental application proposing any of the changes 

set forth in Sec.  320.21(c), may request FDA to waive the requirement 

for the submission of evidence measuring the in vivo bioavailability or 

demonstrating the in vivo bioequivalence of the drug product that is 

the subject of the application. An applicant shall submit a request for 

waiver with the application. Except as provided in paragraph (f) of 

this section, FDA shall waive the requirement for the submission of 

evidence of in vivo bioavailability or bioequivalence if the drug 

product meets any of the provisions of paragraphs (b), (c), (d), or (e) 

of this section.

    (b) * * * FDA shall waive the requirement for the submission of 

evidence obtained in vivo measuring the bioavailability or 

demonstrating the bioequivalence of these drug products. * * *

    (1) * * *

    (ii) Contains the same active and inactive ingredients in the same 

concentration as a drug product that is the subject of an approved full 

new drug application or abbreviated new drug application.

    (2) * * *

    (ii) Contains an active ingredient in the same dosage form as a 

drug product that is the subject of an approved full new drug 

application or abbreviated new drug application.

    (3) * * *

    (i) Is a solution for application to the skin, an oral solution, 

elixir, syrup, tincture, a solution for aerosolization or nebulization, 

a nasal solution, or similar other solubilized form; and

    (ii) Contains an active drug ingredient in the same concentration 

and dosage form as a drug product that is the subject of an approved 

full new drug application or abbreviated new drug application; and

    (iii) Contains no inactive ingredient or other change in 

formulation from the drug product that is the subject of the approved 

full new drug application or abbreviated new drug application that may 

significantly affect absorption of the active drug ingredient or active 

moiety for products that are systemically absorbed, or that may 

significantly affect systemic or local availability for products 

intended to act locally.

    (c) FDA shall waive the requirement for the submission of evidence 

measuring the in vivo bioavailability or demonstrating the in vivo 

bioequivalence of a solid oral dosage form (other than a delayed 

release or extended release dosage form) of a drug product determined 

to be effective for at least one indication in a Drug Efficacy Study 

Implementation notice or which is identical, related, or similar to 

such a drug product under Sec.  310.6 of this chapter unless FDA has 

evaluated the drug product under the criteria set forth in Sec.  

320.33, included the drug product in the Approved Drug Products with 

Therapeutic Equivalence Evaluations List, and rated the drug product as 

having a known or potential bioequivalence problem. A drug product so 

rated reflects a determination by FDA that an in vivo bioequivalence 

study is required.

    (d) For certain drug products, bioavailability may be measured or 

bioequivalence may be demonstrated by evidence obtained in vitro in 

lieu of in vivo data. FDA shall waive the requirement for the 

submission of evidence obtained in vivo measuring the bioavailability 

or demonstrating the bioequivalence of the drug product if the drug 

product meets one of the following criteria:

* * * * *

    (2) * * *

    (i) The bioavailability of this other drug product has been 

measured;

* * * * *

    (iv) Paragraph (d) of this section does not apply to delayed 

release or extended release products.

* * * * *

    (4) * * *

    (i) The bioavailability of the other product has been measured; and

* * * * *

    (e) FDA, for good cause, may waive a requirement for the submission 

of evidence of in vivo bioavailability or bioequivalence if waiver is 

compatible with the protection of the public health. * * *

* * * * *

    8. Section 320.23 is amended by revising the section heading and 

the first sentence of paragraph (a)(1) to read as follows:









Sec.  320.23   Basis for measuring in vivo bioavailability or 

demonstrating bioequivalence.





    (a)(1) The in vivo bioavailability of a drug product is measured if 

the product's rate and extent of absorption, as determined by 

comparison of measured parameters, e.g., concentration of the active 

drug ingredient in the blood, urinary excretion rates, or 

pharmacological effects, do not indicate a significant difference from 

the reference material's rate and extent of absorption. * * *

* * * * *

    9. Section 320.24 is amended by:

    a. Revising the section heading and the first, second, and last 

sentences of paragraph (a);

    b. Removing paragraph (b)(1)(iii); and

    c. Revising the first, second, and last sentences of paragraph 

(b)(4), paragraphs (b)(5) and (b)(6), and paragraph (c) introductory 

text.

    The revisions read as follows:









Sec.  320.24   Types of evidence to measure bioavailability or 

establish bioequivalence.





    (a) Bioavailability may be measured or bioequivalence may be 

demonstrated by several in vivo and in vitro methods. FDA may require 

in vivo or in vitro testing, or both, to measure the bioavailability of 

a drug product or establish the bioequivalence of specific drug 

products. * * * The method used must be capable of measuring 

bioavailability or establishing bioequivalence, as appropriate, for the 

product being tested.

    (b) * * *

    (4) Well-controlled clinical trials that establish the safety and 

effectiveness of the drug product, for purposes of measuring 

bioavailability, or appropriately designed comparative clinical trials, 

for purposes of demonstrating bioequivalence. This approach is the 

least accurate, sensitive, and reproducible of the general approaches 

for measuring bioavailability or demonstrating bioequivalence. * * * 

This approach may also be considered sufficiently





[[Page 77674]]





accurate for measuring bioavailability or demonstrating bioequivalence 

of dosage forms intended to deliver the active moiety locally, e.g., 

topical preparations for the skin, eye, and mucous membranes; oral 

dosage forms not intended to be absorbed, e.g., an antacid or 

radiopaque medium; and bronchodilators administered by inhalation if 

the onset and duration of pharmacological activity are defined.

    (5) A currently available in vitro test acceptable to FDA (usually 

a dissolution rate test) that ensures human in vivo bioavailability.

    (6) Any other approach deemed adequate by FDA to measure 

bioavailability or establish bioequivalence.

    (c) FDA may, notwithstanding prior requirements for measuring 

bioavailability or establishing bioequivalence, require in vivo testing 

in humans of a product at any time if the agency has evidence that the 

product:

* * * * *

    10. Section 320.25 is amended by:

    a. Removing paragraph (a)(2);

    b. Redesignating paragraph (a)(3) as paragraph (a)(2);

    c. Revising newly redesignated paragraph (a)(2), paragraph (d)(1), 

paragraph (e)(1) introductory text, and paragraph (e)(1)(i);

    d. Revising the heading of paragraph (f) to read ``Extended release 

formulations.'';

    e. Removing from paragraph (f) the word ``controlled'' each time it 

appears and adding in its place the word ``extended''; and

    f. Removing from paragraph (f)(iii) the word ``noncontrolled'' and 

adding in its place the word ``nonextended''.

    The revisions read as follows:









Sec.  320.25   Guidelines for the conduct of an in vivo bioavailability 

study.





    (a) * * *

    (2) An in vivo bioavailability study is generally done in a normal 

adult population under standardized conditions. In some situations, an 

in vivo bioavailability study in humans may preferably and more 

properly be done in suitable patients. Critically ill patients shall 

not be included in an in vivo bioavailability study unless the 

attending physician determines that there is a potential benefit to the 

patient.

* * * * *

    (d) Previously unmarketed active drug ingredients or therapeutic 

moieties. (1) An in vivo bioavailability study involving a drug product 

containing an active drug ingredient or therapeutic moiety that has not 

been approved for marketing can be used to measure the following 

pharmacokinetic data:

* * * * *

    (e) New formulations of active drug ingredients or therapeutic 

moieties approved for marketing. (1) An in vivo bioavailability study 

involving a drug product that is a new dosage form, or a new salt or 

ester of an active drug ingredient or therapeutic moiety that has been 

approved for marketing can be used to:

    (i) Measure the bioavailability of the new formulation, new dosage 

form, or new salt or ester relative to an appropriate reference 

material; and

* * * * *

    11. Section 320.26 is amended by revising the section heading and 

paragraph (a)(1) to read as follows:









Sec.  320.26   Guidelines on the design of a single-dose in vivo 

bioavailability or bioequivalence study.





    (a)  Basic principles. (1) An in vivo bioavailability or 

bioequivalence study should be a single-dose comparison of the drug 

product to be tested and the appropriate reference material conducted 

in normal adults.

* * * * *

    12. Section 320.27 is amended by:

    a. Revising paragraphs (a)(3)(iv), (d)(1), and (d)(2);

    b. Removing from paragraph (b)(2) the word ``controlled'' and 

adding in its place the word ``extended''; and

    c. Adding in paragraph (b)(3)(i) the word ``active'' before the 

word ``metabolite(s),''.

    The additions and revisions read as follows:









Sec.  320.27   Guidelines on the design of a multiple-dose in vivo 

bioavailability study.





    (a) * * *

    (3) * * *

    (iv) The drug product is an extended release dosage form.

* * * * *

    (d) Collection of blood or urine samples. (1) Whenever comparison 

of the test product and the reference material is to be based on blood 

concentration-time curves at steady state, appropriate dosage 

administration and sampling should be carried out to document 

attainment of steady state.

    (2) Whenever comparison of the test product and the reference 

material is to be based on cumulative urinary excretion-time curves at 

steady state, appropriate dosage administration and sampling should be 

carried out to document attainment of steady state.

* * * * *









Sec.  320.28   [Amended]





    13. Section 320.28 Correlation of bioavailability with an acute 

pharmacological effect or clinical evidence is amended by removing the 

word ``controlled'' and adding in its place the word ``extended''.

    14. Section 320.29 is amended by revising the section heading and 

paragraph (a) and by adding the word ``active'' before the word 

``metabolite(s)'' in paragraph (b) to read as follows:









Sec.  320.29   Analytical methods for an in vivo bioavailability or 

bioequivalence study.





    (a) The analytical method used in an in vivo bioavailability or 

bioequivalence study to measure the concentration of the active drug 

ingredient or therapeutic moiety, or its active metabolite(s), in body 

fluids or excretory products, or the method used to measure an acute 

pharmacological effect shall be demonstrated to be accurate and of 

sufficient sensitivity to measure, with appropriate precision, the 

actual concentration of the active drug ingredient or therapeutic 

moiety, or its active metabolite(s), achieved in the body.

* * * * *

    15. Section 320.30 is amended by revising paragraph (c) to read as 

follows:









Sec.  320.30   Inquiries regarding bioavailability and bioequivalence 

requirements and review of protocols by the Food and Drug 

Administration.





* * * * *

    (c)(1) General inquiries relating to in vivo bioavailability 

requirements and methodology shall be submitted to the Food and Drug 

Administration, Center for Drug Evaluation and Research, Office of 

Clinical Pharmacology and Biopharmaceutics (HFD-850), 5600 Fishers 

Lane, Rockville, MD 20857.

    (2) General inquiries relating to bioequivalence requirements and 

methodology shall be submitted to the Food and Drug Administration, 

Center for Drug Evaluation and Research, Division of Bioequivalence 

(HFD-650), 7500 Standish Pl., Rockville, MD 20855-2773.









Sec.  320.31   [Amended]





    16. Section 320.31 Applicability of requirements regarding an 

``Investigational New Drug Application'' is amended in paragraph (b) 

introductory text by adding after the word ``bioavailability'' the 

phrase ``or bioequivalence'' and in paragraph (b)(3) by removing the 

word ``controlled'' and adding in its place the word ``extended''.









[[Page 77675]]









    Dated: December 8, 2002.

Margaret M. Dotzel,

Assistant Commissioner for Policy.

[FR Doc. 02-31996 Filed 12-18-02; 8:45 am]



BILLING CODE 4160-01-S