United States Code

USC most recently checked for updates: Aug 10, 2020

§ 357.
Qualification of drug development tools
(a)
Process for qualification
(1)
In general
The Secretary shall establish a process for the qualification of drug development tools for a proposed context of use under which—
(A)
(i)
a requestor initiates such process by submitting a letter of intent to the Secretary; and
(ii)
the Secretary accepts or declines to accept such letter of intent;
(B)
(i)
if the Secretary accepts the letter of intent, a requestor submits a qualification plan to the Secretary; and
(ii)
the Secretary accepts or declines to accept the qualification plan; and
(C)
(i)
if the Secretary accepts the qualification plan, the requestor submits to the Secretary a full qualification package;
(ii)
the Secretary determines whether to accept such qualification package for review; and
(iii)
if the Secretary accepts such qualification package for review, the Secretary conducts such review in accordance with this section.
(2)
Acceptance and review of submissions
(A)
In general

Subparagraphs (B), (C), and (D) shall apply with respect to the treatment of a letter of intent, a qualification plan, or a full qualification package submitted under paragraph (1) (referred to in this paragraph as “qualification submissions”).

(B)
Acceptance factors; nonacceptance

The Secretary shall determine whether to accept a qualification submission based on factors which may include the scientific merit of the qualification submission. A determination not to accept a submission under paragraph (1) shall not be construed as a final determination by the Secretary under this section regarding the qualification of a drug development tool for its proposed context of use.

(C)
Prioritization of qualification review
The Secretary may prioritize the review of a full qualification package submitted under paragraph (1) with respect to a drug development tool, based on factors determined appropriate by the Secretary, including—
(i)
as applicable, the severity, rarity, or prevalence of the disease or condition targeted by the drug development tool and the availability or lack of alternative treatments for such disease or condition; and
(ii)
the identification, by the Secretary or by biomedical research consortia and other expert stakeholders, of such a drug development tool and its proposed context of use as a public health priority.
(D)
Engagement of external experts

The Secretary may, for purposes of the review of qualification submissions, through the use of cooperative agreements, grants, or other appropriate mechanisms, consult with biomedical research consortia and may consider the recommendations of such consortia with respect to the review of any qualification plan submitted under paragraph (1) or the review of any full qualification package under paragraph (3).

(3)
Review of full qualification package
The Secretary shall—
(A)
conduct a comprehensive review of a full qualification package accepted under paragraph (1)(C); and
(B)
determine whether the drug development tool at issue is qualified for its proposed context of use.
(4)
Qualification

The Secretary shall determine whether a drug development tool is qualified for a proposed context of use based on the scientific merit of a full qualification package reviewed under paragraph (3).

(b)
Effect of qualification
(1)
In general

A drug development tool determined to be qualified under subsection (a)(4) for a proposed context of use specified by the requestor may be used by any person in such context of use for the purposes described in paragraph (2).

(2)
Use of a drug development tool
Subject to paragraph (3), a drug development tool qualified under this section may be used for—
(A)
supporting or obtaining approval or licensure (as applicable) of a drug or biological product (including in accordance with section 356(c) of this title) under section 355 of this title or section 351 of the Public Health Service Act [42 U.S.C. 262]; or
(B)
supporting the investigational use of a drug or biological product under section 355(i) of this title or section 351(a)(3) of the Public Health Service Act [42 U.S.C. 262(a)(3)].
(3)
Rescission or modification
(A)
In general

The Secretary may rescind or modify a determination under this section to qualify a drug development tool if the Secretary determines that the drug development tool is not appropriate for the proposed context of use specified by the requestor. Such a determination may be based on new information that calls into question the basis for such qualification.

(B)
Meeting for review

If the Secretary rescinds or modifies under subparagraph (A) a determination to qualify a drug development tool, the requestor involved shall, on request, be granted a meeting with the Secretary to discuss the basis of the Secretary’s decision to rescind or modify the determination before the effective date of the rescission or modification.

(c)
Transparency
(1)
In general
Subject to paragraph (3), the Secretary shall make publicly available, and update on at least a biannual basis, on the Internet website of the Food and Drug Administration the following:
(A)
Information with respect to each qualification submission under the qualification process under subsection (a), including—
(i)
the stage of the review process applicable to the submission;
(ii)
the date of the most recent change in stage status;
(iii)
whether external scientific experts were utilized in the development of a qualification plan or the review of a full qualification package; and
(iv)
submissions from requestors under the qualification process under subsection (a), including any data and evidence contained in such submissions, and any updates to such submissions.
(B)
The Secretary’s formal written determinations in response to such qualification submissions.
(C)
Any rescissions or modifications under subsection (b)(3) of a determination to qualify a drug development tool.
(D)
Summary reviews that document conclusions and recommendations for determinations to qualify drug development tools under subsection (a).
(E)
A comprehensive list of—
(i)
all drug development tools qualified under subsection (a); and
(ii)
all surrogate endpoints which were the basis of approval or licensure (as applicable) of a drug or biological product (including in accordance with section 356(c) of this title) under section 355 of this title or section 351 of the Public Health Service Act [42 U.S.C. 262].
(2)
Relation to Trade Secrets Act

Information made publicly available by the Secretary under paragraph (1) shall be considered a disclosure authorized by law for purposes of section 1905 of title 18.

(3)
Applicability
(A)
In general
Nothing in this section shall be construed as authorizing or directing the Secretary to disclose—
(i)
any information contained in an application submitted under section 355 of this title or section 351 of the Public Health Service Act [42 U.S.C. 262] that is confidential commercial or trade secret information subject to section 552(b)(4) of title 5 or section 1905 of title 18; or
(ii)
in the case of a drug development tool that may be used to support the development of a qualified countermeasure, security countermeasure, or qualified pandemic or epidemic product, as defined in sections 319F–1, 319F–2, and 319F–3, respectively, of the Public Health Service Act [42 U.S.C. 247d–6a, 247d–6b, 247d–6d], any information that the Secretary determines has a significant potential to affect national security.
(B)
Public acknowledgment

(d)
Rule of construction
Nothing in this section shall be construed—
(1)
to alter the standards of evidence under subsection (c) or (d) of section 355 of this title, including the substantial evidence standard in such subsection (d), or under section 351 of the Public Health Service Act [42 U.S.C. 262] (as applicable); or
(2)
to limit the authority of the Secretary to approve or license products under this chapter or the Public Health Service Act [42 U.S.C. 201 et seq.], as applicable (as in effect before December 13, 2016).
(e)
Definitions
In this section:
(1)
Biomarker
The term “biomarker”—
(A)
means a characteristic (such as a physiologic, pathologic, or anatomic characteristic or measurement) that is objectively measured and evaluated as an indicator of normal biologic processes, pathologic processes, or biological responses to a therapeutic intervention; and
(B)
includes a surrogate endpoint.
(2)
Biomedical research consortia

The term “biomedical research consortia” means collaborative groups that may take the form of public-private partnerships and may include government agencies, institutions of higher education (as defined in section 1001(a) of title 20), patient advocacy groups, industry representatives, clinical and scientific experts, and other relevant entities and individuals.

(3)
Clinical outcome assessment
The term “clinical outcome assessment” means—
(A)
a measurement of a patient’s symptoms, overall mental state, or the effects of a disease or condition on how the patient functions; and
(B)
includes a patient-reported outcome.
(4)
Context of use

The term “context of use” means, with respect to a drug development tool, the circumstances under which the drug development tool is to be used in drug development and regulatory review.

(5)
Drug development tool
The term “drug development tool” includes—
(A)
a biomarker;
(B)
a clinical outcome assessment; and
(C)
any other method, material, or measure that the Secretary determines aids drug development and regulatory review for purposes of this section.
(6)
Patient-reported outcome

The term “patient-reported outcome” means a measurement based on a report from a patient regarding the status of the patient’s health condition without amendment or interpretation of the patient’s report by a clinician or any other person.

(7)
Qualification

The terms “qualification” and “qualified” mean a determination by the Secretary that a drug development tool and its proposed context of use can be relied upon to have a specific interpretation and application in drug development and regulatory review under this chapter.

(8)
Requestor

The term “requestor” means an entity or entities, including a drug sponsor or a biomedical research consortia, seeking to qualify a drug development tool for a proposed context of use under this section.

(9)
Surrogate endpoint
The term “surrogate endpoint” means a marker, such as a laboratory measurement, radiographic image, physical sign, or other measure, that is not itself a direct measurement of clinical benefit, and—
(A)
is known to predict clinical benefit and could be used to support traditional approval of a drug or biological product; or
(B)
is reasonably likely to predict clinical benefit and could be used to support the accelerated approval of a drug or biological product in accordance with section 356(c) of this title.
(June 25, 1938, ch. 675, § 507, as added Pub. L. 114–255, div. A, title III, § 3011(a), Dec. 13, 2016, 130 Stat. 1086; amended Pub. L. 116–22, title VII, § 705(e), June 24, 2019, 133 Stat. 964.)
cite as: 21 USC 357