Food and drug law journal最新文献

This Article describes and evaluates two elements of the FDA's recent operations implicating information transparency: the Transparency Initiative and a reduction in the agency's FOIA backlog. After discussing the legal context for information disclosure at the FDA and these two transparency attempts, this Article identifies two reasons that the first has fallen short of expectations compared to the second: unlike the reduction in the FOIA backlog, the Transparency Initiative had legal constraints that it did not adequately address, along with political appointee leadership. These principles may be more generally useful for understanding how to stimulate institutional change in administrative agencies.

The FDA approved Depo-Provera, an injectable contraceptive, in 1992 on the condition that its manufacturer conduct a post-approval study on the risk ofosteoporosis. Then in 2004, the agency revised the drug's labeling to include a boxed (i.e. Black Box) Warning on the risk ofosteoporosis. This article will analyze the FDA's Depo-Provera approval and label revision process: the agency's acceptance of Upjohn's New Drug Application, its Fertility and Maternal Health Advisory Committee's review of the human clinical studies and approval recommendation, its marketing approval of Depo-Provera, and its 2004 drug labeling revision. Then the article will analyze the post-2004 products liability litigation by women who claimed to have been injured by their use of the drug. None of the cases have survived the manufacturer's summary judgment motions, because the women have been unable to establish by expert and physician evidence that the FDA-approved labeling was inadequate to inform their physicians of the risk of osteoporosis, that the inadequate warnings caused their osteoporosis or osteopenia, and that these are compensable injuries. As a result, the manufacturer has been able to use the FDA labeling, state products liability law, and the learned intermediary doctrine to avoid liability. The conclusion will consider the lessons of these products liability cases for other women who have received Depo-Provera and suffered bone mineral density loss.

This article explores whether private regulation of food safety may fill in the gaps of statutory food reforms such as the Food Modernization Safety Act. The relatively new economic school of thought labeled "New Governance" centers around non-state actors acting not just as the object of but also as the creators of the norms regulating their own behavior. This regime may not only enable more efficient food safety regulations in the domestic setting, but also in the international context, as cooperation between non-state actors may overcome the traditional frictions between nations regarding regulatory schemes. It seems, therefore, as one example of "New Governance" rules, that third-party certification schemes may indeed play a vital and successful role in achieving a higher level of quality and safety for foods imported into the United States.

Breakthrough medical tools and technologies are rapidly becoming available in countries across the world, but cannot be purchased in the United States, where these innovative products still await FDA approval. The artificial pancreas is a prime example of such medical technologies, as one of these device systems has been available in over 40 countries outside of the United States for more than 3 years. The term "artificial pancreas" refers to any one of a group of closed-loop device systems designed to protect type 1 diabetics against dangerous diabetes episodes, while also reducing the risk of diabetes-related complications by enabling tighter glycemic control. The following paper will provide an overview of diabetes, a brief history of diabetes management, the technological challenges of creating a fully functional closed-loop diabetes management system, and the role of FDA in the development of the artificial pancreas.

Most international health-related standards are voluntary per se. However, the incorporation of international standard-making into WTO agreements like the SPS Agreement has drastically changed the status and effectiveness of the standards. WTO members are urged to follow international standards, even when not required to comply fully with them. Indeed, such standards have attained great influence in the trade system. Yet evidence shows that the credibility of the allegedly scientific approach of these international standard-setting institutions, especially the Codex Alimentarius Commission (Codex) governing food safety standards, has been eroded and diluted by industrial and political influences. Its decision-making is no longer based on consensus, but voting. The adoption of new safety limits for the veterinary drug ractopamine in 2012, by a very close vote, is simply another instance of the problematic operations of the Codex. These dynamics have led skeptics to question the legitimacy of the standard setting body and to propose solutions to rectify the situation. Prior WTO rulings have yet to pay attention to the defect in the decision-making processes of the Codex. Nevertheless, the recent Appellate Body decision on Hormones II is indicative of a deferential approach to national measures that are distinct from Codex formulas. The ruling also rejects the reliance on those experts who authored the Codex standards to assess new measures of the European Community. This approach provides an opportunity to contemplate what the proper relationship between the WTO and Codex ought to be. Through a critical review of WTO rulings and academic proposals, this article aims to analyze how the WTO ought to define such interactions and respond to the politicized standard-making process in an optimal manner. This article argues that building a more systematic approach and normative basis for WTO judicial review of standard-setting decisions and the selection of technical experts would be instrumental to strengthening the mutual supports between the WTO and international standard-setting organizations, and may help avoid the introduction of a prejudice toward a justified science finding.

Pharmaceutical companies use social media such as Facebook and Twitter more and more to advertise their products. Advertising of medicinal products especially in social media is a critical issue confronting patient protection, competition law and ethical concerns in direct-to-consumer advertising. Advertising in the World Wide Web must take into account national and international regulations, depending on which user from which country will have access to the information posted. Different legal requirements, if any, regulate the advertising of medicinal products. This paper discusses, challenges and compares the requirements and regulations of advertising medicinal products in social media, such as Facebook, in the United States on a federal level and the European Union with Germany as a reference Member State. Social media are very active and fast moving. Therefore, it is challenging and necessary at the same time to set guidelines and regulations for the use of social media in drug advertising. This paper is a first step toward promoting an international, consistent approach when talking about regulating advertising of medicinal products in social media.

The Federal Food, Drug, and Cosmetic Act ("FDCA"), amended in 1990 by the Nutrition Education and Labeling Act ("NLEA"), established a national framework for the administration and promulgation of uniform food labeling standards. Specifically, the NLEA created affirmative obligations for the food--requiring detailed disclosure of food content and strict adherence to regulations governing the use of health and nutritional claims on food packaging. To accomplish these goals, Congress tasked the Food and Drug Administration ("FDA") with the sole responsibility of the enforcement of these new requirements. Under the statutory framework of the FDCA, the United States Supreme Court ("Court") has held that there is no private right of action, of which extended to the enforcement of NLEA standards. This interpretation has left individuals with no federal outlet for relief in the enforcement of federal food labeling standards. Adherence to this interpretation is especially concerning when the FDA currently faces exponential growth in administrative responsibilities while simultaneously experiencing employment reduction, a $206 million "Sequester," and a recent government-wide shutdown. As a result, the American people are left to depend on an Agency that is struggling with drastic resource reduction while being accountable for ever increasing enforcement responsibilities. To ensure consumer protection, this Article argues that Congress should amend the FDCA to include a citizen suit provision in order to provide individuals with a right of private action for the enforcement of NLEA standards. Borrowing from the successes realized under similar citizen suit provisions found in environmental legislation, this Article argues that a citizen suit provision is amendable to the FDCA and would relieve fiscal pressures, strengthen the current enforcement framework of the FDCA, encourage more robust enforcement by the FDA and states, and ensure uniform interpretation of NLEA standards.

Although human subject research is regulated by federal agencies, the differences between research and innovative clinical practice are often blurred. Research and innovative practices share the similar goals of obtaining additional knowledge and improving medical treatment. Research, however, is more specifically defined as "a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge." Aprocedure consistent with this definition is subject to distinct federal regulations and other ethical procedural safeguards. When unregulated innovative practices, not neatly fitting within this definition of research, are first implemented, safeguards do not necessarily exist because use of these procedures is primarily guided by individual physician judgment. Recognizing that the application of innovative advancements in ART may very well benefit numerous prospective infertile patients and may initially appear to be safe and effective, these new and novel procedures may be associated with yet unknown long-term risks and safety concerns unless more formal scientific study is conducted to support efficacy and safety.

Biotechnology has evolved beyond the realm of child's guess-and-check to a precise science, and now promises to help solve some of the globe's most pressing challenges, including food insecurity and environmental degradation. Beyond this, biotechnology also represents an important part of the American intellectual property landscape. Unlike transgenic plants, no transgenic animals have yet to reach the American dinner table, despite the fact that transgenic animals offer cheap, healthy, and an environmentally friendly source of protein. AquaBounty's AquAdvantage Salmon, which counts itself among the most heavily regulated product in the Food and Drug Administration's history, suffers greatly from negative stigma from special interest groups and the media. This article will examine the important role of biotechnology in America's intellectual property market, the regulation of the AquAdvantage Salmon, and transgenic animal products more generally, before FDA, as well as some of misinformation about AquAdvantage that has been presented to the American public. This article additionally advocates for FDA to adopt a more proactive public outreach role in explaining to the American public, in terms accessible to the layperson, what a transgenic animal product is, how FDA regulates transgenic animal products, and why FDA feels these products are safe for human consumption. In doing so, this article hopes to establish that FDA is best suited to provide the American public with objective facts surrounding this highly stigmatized product.