[Code of Federal Regulations]
[Title 21, Volume 5]
[Revised as of April 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 21CFR314.200]

[Page 157-162]
 
                        TITLE 21--FOOD AND DRUGS
 
CHAPTER I--FOOD AND DRUG ADMINISTRATION, DEPARTMENT OF 
 
PART 314_APPLICATIONS FOR FDA APPROVAL TO MARKET A NEW DRUG--
Table of Contents
 
               Subpart E_Hearing Procedures for New Drugs
 
Sec. 314.200  Notice of opportunity for hearing; notice of 
participation and request for hearing; grant or denial of hearing.

    Source: 50 FR 7493, Feb. 22, 1985, unless otherwise noted. 
Redesignated at 57 FR 17983, Apr. 28, 1992.


    (a) Notice of opportunity for hearing. The Director of the Center 
for Drug Evaluation and Research, Food and Drug Administration, will 
give the applicant, and all other persons who manufacture or distribute 
identical, related, or similar drug products as defined in Sec. 310.6 
of this chapter, notice and an opportunity for a hearing on the Center's 
proposal to refuse to approve an application or to withdraw the approval 
of an application or abbreviated application under section 505(e) of the 
act. The notice will state the reasons for the action and the proposed 
grounds for the order.
    (1) The notice may be general (that is, simply summarizing in a 
general way the information resulting in the notice) or specific (that 
is, either referring to specific requirements in the statute and 
regulations with which

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there is a lack of compliance, or providing a detailed description and 
analysis of the specific facts resulting in the notice).
    (2) FDA will publish the notice in the Federal Register and will 
state that the applicant, and other persons subject to the notice under 
Sec. 310.6, who wishes to participate in a hearing, has 30 days after 
the date of publication of the notice to file a written notice of 
participation and request for hearing. The applicant, or other persons 
subject to the notice under Sec. 310.6, who fails to file a written 
notice of participation and request for hearing within 30 days, waives 
the opportunity for a hearing.
    (3) It is the responsibility of every manufacturer and distributor 
of a drug product to review every notice of opportunity for a hearing 
published in the Federal Register to determine whether it covers any 
drug product that person manufactures or distributes. Any person may 
request an opinion of the applicability of a notice to a specific 
product that may be identical, related, or similar to a product listed 
in a notice by writing to the Division of New Drugs and Labeling 
Compliance (HFD-310), Office of Compliance, Center for Drug Evaluation 
and Research, Food and Drug Administration, 5600 Fishers Lane, 
Rockville, MD 20857. A person shall request an opinion within 30 days of 
the date of publication of the notice to be eligible for an opportunity 
for a hearing under the notice. If a person requests an opinion, that 
person's time for filing an appearance and request for a hearing and 
supporting studies and analyses begins on the date the person receives 
the opinion from FDA.
    (b) FDA will provide the notice of opportunity for a hearing to 
applicants and to other persons subject to the notice under Sec. 310.6, 
as follows:
    (1) To any person who has submitted an application or abbreviated 
application, by delivering the notice in person or by sending it by 
registered or certified mail to the last address shown in the 
application or abbreviated application.
    (2) To any person who has not submitted an application or 
abbreviated application but who is subject to the notice under Sec. 
310.6 of this chapter, by publication of the notice in the Federal 
Register.
    (c)(1) Notice of participation and request for a hearing, and 
submission of studies and comments. The applicant, or any other person 
subject to the notice under Sec. 310.6, who wishes to participate in a 
hearing, shall file with the Division of Dockets Management (HFA-305), 
Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 
20852, (i) within 30 days after the date of the publication of the 
notice (or of the date of receipt of an opinion requested under 
paragraph (a)(3) of this section) a written notice of participation and 
request for a hearing and (ii) within 60 days after the date of 
publication of the notice, unless a different period of time is 
specified in the notice of opportunity for a hearing, the studies on 
which the person relies to justify a hearing as specified in paragraph 
(d) of this section. The applicant, or other person, may incorporate by 
reference the raw data underlying a study if the data were previously 
submitted to FDA as part of an application, abbreviated application, or 
other report.
    (2) FDA will not consider data or analyses submitted after 60 days 
in determining whether a hearing is warranted unless they are derived 
from well-controlled studies begun before the date of the notice of 
opportunity for hearing and the results of the studies were not 
available within 60 days after the date of publication of the notice. 
Nevertheless, FDA may consider other studies on the basis of a showing 
by the person requesting a hearing of inadvertent omission and hardship. 
The person requesting a hearing shall list in the request for hearing 
all studies in progress, the results of which the person intends later 
to submit in support of the request for a hearing. The person shall 
submit under paragraph (c)(1)(ii) of this section a copy of the complete 
protocol, a list of the participating investigators, and a brief status 
report of the studies.
    (3) Any other interested person who is not subject to the notice of 
opportunity for a hearing may also submit comments on the proposal to 
withdraw approval of the application or abbreviated application. The 
comments are requested to be submitted within the

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time and under the conditions specified in this section.
    (d) The person requesting a hearing is required to submit under 
paragraph (c)(1)(ii) of this section the studies (including all 
protocols and underlying raw data) on which the person relies to justify 
a hearing with respect to the drug product. Except, a person who 
requests a hearing on the refusal to approve an application is not 
required to submit additional studies and analyses if the studies upon 
which the person relies have been submitted in the application and in 
the format and containing the summaries required under Sec. 314.50.
    (1) If the grounds for FDA's proposed action concern the 
effectiveness of the drug, each request for hearing is required to be 
supported only by adequate and well-controlled clinical studies meeting 
all of the precise requirements of Sec. 314.126 and, for combination 
drug products, Sec. 300.50, or by other studies not meeting those 
requirements for which a waiver has been previously granted by FDA under 
Sec. 314.126. Each person requesting a hearing shall submit all 
adequate and well-controlled clinical studies on the drug product, 
including any unfavorable analyses, views, or judgments with respect to 
the studies. No other data, information, or studies may be submitted.
    (2) The submission is required to include a factual analysis of all 
the studies submitted. If the grounds for FDA's proposed action concern 
the effectiveness of the drug, the analysis is required to specify how 
each study accords, on a point-by-point basis, with each criterion 
required for an adequate well-controlled clinical investigation 
established under Sec. 314.126 and, if the product is a combination 
drug product, with each of the requirements for a combination drug 
established in Sec. 300.50, or the study is required to be accompanied 
by an appropriate waiver previously granted by FDA. If a study concerns 
a drug or dosage form or condition of use or mode of administration 
other than the one in question, that fact is required to be clearly 
stated. Any study conducted on the final marketed form of the drug 
product is required to be clearly identified.
    (3) Each person requesting a hearing shall submit an analysis of the 
data upon which the person relies, except that the required information 
relating either to safety or to effectiveness may be omitted if the 
notice of opportunity for hearing does not raise any issue with respect 
to that aspect of the drug; information on compliance with Sec. 300.50 
may be omitted if the drug product is not a combination drug product. A 
financial certification or disclosure statement or both as required by 
part 54 of this chapter must accompany all clinical data submitted. FDA 
can most efficiently consider submissions made in the following format.

    I. Safety data.
    A. Animal safety data.
    1. Individual active components.
    a. Controlled studies.
    b. Partially controlled or uncontrolled studies.
    2. Combinations of the individual active components.
    a. Controlled studies.
    b. Partially controlled or uncontrolled studies.
    B. Human safety data.
    1. Individual active components.
    a. Controlled studies.
    b. Partially controlled or uncontrolled studies.
    c. Documented case reports.
    d. Pertinent marketing experiences that may influence a 
determination about the safety of each individual active component.
    2. Combinations of the individual active components.
    a. Controlled studies.
    b. Partially controlled or uncontrolled studies.
    c. Documented case reports.
    d. Pertinent marketing experiences that may influence a 
determination about the safety of each individual active component.
    II. Effectiveness data.
    A. Individual active components: Controlled studies, with an 
analysis showing clearly how each study satisfies, on a point-by-point 
basis, each of the criteria required by Sec. 314.126.
    B. Combinations of individual active components.
    1. Controlled studies with an analysis showing clearly how each 
study satisfies on a point-by-point basis, each of the criteria required 
by Sec. 314.126.
    2. An analysis showing clearly how each requirement of Sec. 300.50 
has been satisfied.
    III. A summary of the data and views setting forth the medical 
rationale and purpose for the drug and its ingredients and the 
scientific basis for the conclusion that the drug

[[Page 160]]

and its ingredients have been proven safe and/or effective for the 
intended use. If there is an absence of controlled studies in the 
material submitted or the requirements of any element of Sec. 300.50 or 
Sec. 314.126 have not been fully met, that fact is required to be 
stated clearly and a waiver obtained under Sec. 314.126 is required to 
be submitted.
    IV. A statement signed by the person responsible for such submission 
that it includes in full (or incorporates by reference as permitted in 
Sec. 314.200(c)(2)) all studies and information specified in Sec. 
314.200(d).

    (Warning: A willfully false statement is a criminal offense, 18 
U.S.C. 1001.)

    (e) Contentions that a drug product is not subject to the new drug 
requirements. A notice of opportunity for a hearing encompasses all 
issues relating to the legal status of each drug product subject to it, 
including identical, related, and similar drug products as defined in 
Sec. 310.6. A notice of appearance and request for a hearing under 
paragraph (c)(1)(i) of this section is required to contain any 
contention that the product is not a new drug because it is generally 
recognized as safe and effective within the meaning of section 201(p) of 
the act, or because it is exempt from part or all of the new drug 
provisions of the act under the exemption for products marketed before 
June 25, 1938, contained in section 201(p) of the act or under section 
107(c) of the Drug Amendments of 1962, or for any other reason. Each 
contention is required to be supported by a submission under paragraph 
(c)(1)(ii) of this section and the Commissioner of Food and Drugs will 
make an administrative determination on each contention. The failure of 
any person subject to a notice of opportunity for a hearing, including 
any person who manufactures or distributes an identical, related, or 
similar drug product as defined in Sec. 310.6, to submit a notice of 
participation and request for hearing or to raise all such contentions 
constitutes a waiver of any contentions not raised.
    (1) A contention that a drug product is generally recognized as safe 
and effective within the meaning of section 201(p) of the act is 
required to be supported by submission of the same quantity and quality 
of scientific evidence that is required to obtain approval of an 
application for the product, unless FDA has waived a requirement for 
effectiveness (under Sec. 314.126) or safety, or both. The submission 
should be in the format and with the analyses required under paragraph 
(d) of this section. A person who fails to submit the required 
scientific evidence required under paragraph (d) waives the contention. 
General recognition of safety and effectiveness shall ordinarily be 
based upon published studies which may be corroborated by unpublished 
studies and other data and information.
    (2) A contention that a drug product is exempt from part or all of 
the new drug provisions of the act under the exemption for products 
marketed before June 25, 1938, contained in section 201(p) of the act, 
or under section 107(c) of the Drug Amendments of 1962, is required to 
be supported by evidence of past and present quantitative formulas, 
labeling, and evidence of marketing. A person who makes such a 
contention should submit the formulas, labeling, and evidence of 
marketing in the following format.

    I. Formulation.
    A. A copy of each pertinent document or record to establish the 
exact quantitative formulation of the drug (both active and inactive 
ingredients) on the date of initial marketing of the drug.
    B. A statement whether such formulation has at any subsequent time 
been changed in any manner. If any such change has been made, the exact 
date, nature, and rationale for each change in formulation, including 
any deletion or change in the concentration of any active ingredient 
and/or inactive ingredient, should be stated, together with a copy of 
each pertinent document or record to establish the date and nature of 
each such change, including, but not limited to, the formula which 
resulted from each such change. If no such change has been made, a copy 
of representative documents or records showing the formula at 
representative points in time should be submitted to support the 
statement.
    II. Labeling.
    A. A copy of each pertinent document or record to establish the 
identity of each item of written, printed, or graphic matter used as 
labeling on the date the drug was initially marketed.
    B. A statement whether such labeling has at any subsequent time been 
discontinued or changed in any manner. If such discontinuance or change 
has been made, the exact date, nature, and rationale for each 
discontinuance or change and a copy of each pertinent document or record 
to establish each such discontinuance or change should

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be submitted, including, but not limited to, the labeling which resulted 
from each such discontinuance or change. If no such discontinuance or 
change has been made, a copy of representative documents or records 
showing labeling at representative points in time should be submitted to 
support the statement.
    III. Marketing.
    A. A copy of each pertinent document or record to establish the 
exact date the drug was initially marketed.
    B. A statement whether such marketing has at any subsequent time 
been discontinued. If such marketing has been discontinued, the exact 
date of each such discontinuance should be submitted, together with a 
copy of each pertinent document or record to establish each such date.
    IV. Verification.
    A statement signed by the person responsible for such submission, 
that all appropriate records have been searched and to the best of that 
person's knowledge and belief it includes a true and accurate 
presentation of the facts.

    (Warning: A willfully false statement is a criminal offense, 18 
U.S.C. 1001.)

    (3) The Food and Drug Administration will not find a drug product, 
including any active ingredient, which is identical, related, or 
similar, as described in Sec. 310.6, to a drug product, including any 
active ingredient for which an application is or at any time has been 
effective or deemed approved, or approved under section 505 of the act, 
to be exempt from part or all of the new drug provisions of the act.
    (4) A contention that a drug product is not a new drug for any other 
reason is required to be supported by submission of the factual records, 
data, and information that are necessary and appropriate to support the 
contention.
    (5) It is the responsibility of every person who manufactures or 
distributes a drug product in reliance upon a ``grandfather'' provision 
of the act to maintain files that contain the data and information 
necessary fully to document and support that status.
    (f) Separation of functions. Separation of functions commences upon 
receipt of a request for hearing. The Director of the Center for Drug 
Evaluation and Research, Food and Drug Administration, will prepare an 
analysis of the request and a proposed order ruling on the matter. The 
analysis and proposed order, the request for hearing, and any proposed 
order denying a hearing and response under paragraph (g) (2) or (3) of 
this section will be submitted to the Office of the Commissioner of Food 
and Drugs for review and decision. When the Center for Drug Evaluation 
and Research recommends denial of a hearing on all issues on which a 
hearing is requested, no representative of the Center will participate 
or advise in the review and decision by the Commissioner. When the 
Center for Drug Evaluation and Research recommends that a hearing be 
granted on one or more issues on which a hearing is requested, 
separation of functions terminates as to those issues, and 
representatives of the Center may participate or advise in the review 
and decision by the Commissioner on those issues. The Commissioner may 
modify the text of the issues, but may not deny a hearing on those 
issues. Separation of functions continues with respect to issues on 
which the Center for Drug Evaluation and Research has recommended denial 
of a hearing. The Commissioner will neither evaluate nor rule on the 
Center's recommendation on such issues and such issues will not be 
included in the notice of hearing. Participants in the hearing may make 
a motion to the presiding officer for the inclusion of any such issue in 
the hearing. The ruling on such a motion is subject to review in 
accordance with Sec. 12.35(b). Failure to so move constitutes a waiver 
of the right to a hearing on such an issue. Separation of functions on 
all issues resumes upon issuance of a notice of hearing. The Office of 
the General Counsel, Department of Health and Human Services, will 
observe the same separation of functions.
    (g) Summary judgment. A person who requests a hearing may not rely 
upon allegations or denials but is required to set forth specific facts 
showing that there is a genuine and substantial issue of fact that 
requires a hearing with respect to a particular drug product specified 
in the request for hearing.
    (1) Where a specific notice of opportunity for hearing (as defined 
in paragraph (a)(1) of this section) is used, the Commissioner will 
enter summary judgment against a person who requests a hearing, making 
findings and conclusions, denying a hearing, if it conclusively appears 
from the face of

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the data, information, and factual analyses in the request for the 
hearing that there is no genuine and substantial issue of fact which 
precludes the refusal to approve the application or abbreviated 
application or the withdrawal of approval of the application or 
abbreviated application; for example, no adequate and well-controlled 
clinical investigations meeting each of the precise elements of Sec. 
314.126 and, for a combination drug product, Sec. 300.50 of this 
chapter, showing effectiveness have been identified. Any order entering 
summary judgment is required to set forth the Commissioner's findings 
and conclusions in detail and is required to specify why each study 
submitted fails to meet the requirements of the statute and regulations 
or why the request for hearing does not raise a genuine and substantial 
issue of fact.
    (2) When following a general notice of opportunity for a hearing (as 
defined in paragraph (a)(1) of this section) the Director of the Center 
for Drug Evaluation and Research concludes that summary judgment against 
a person requesting a hearing should be considered, the Director will 
serve upon the person requesting a hearing by registered mail a proposed 
order denying a hearing. This person has 60 days after receipt of the 
proposed order to respond with sufficient data, information, and 
analyses to demonstrate that there is a genuine and substantial issue of 
fact which justifies a hearing.
    (3) When following a general or specific notice of opportunity for a 
hearing a person requesting a hearing submits data or information of a 
type required by the statute and regulations, and the Director of the 
Center for Drug Evaluation and Research concludes that summary judgment 
against the person should be considered, the Director will serve upon 
the person by registered mail a proposed order denying a hearing. The 
person has 60 days after receipt of the proposed order to respond with 
sufficient data, information, and analyses to demonstrate that there is 
a genuine and substantial issue of fact which justifies a hearing.
    (4) If review of the data, information, and analyses submitted show 
that the grounds cited in the notice are not valid, for example, that 
substantial evidence of effectiveness exists, the Commissioner will 
enter summary judgment for the person requesting the hearing, and 
rescind the notice of opportunity for hearing.
    (5) If the Commissioner grants a hearing, it will begin within 90 
days after the expiration of the time for requesting the hearing unless 
the parties otherwise agree in the case of denial of approval, and as 
soon as practicable in the case of withdrawal of approval.
    (6) The Commissioner will grant a hearing if there exists a genuine 
and substantial issue of fact or if the Commissioner concludes that a 
hearing would otherwise be in the public interest.
    (7) If the manufacturer or distributor of an identical, related, or 
similar drug product requests and is granted a hearing, the hearing may 
consider whether the product is in fact identical, related, or similar 
to the drug product named in the notice of opportunity for a hearing.
    (8) A request for a hearing, and any subsequent grant or denial of a 
hearing, applies only to the drug products named in such documents.
    (h) FDA will issue a notice withdrawing approval and declaring all 
products unlawful for drug products subject to a notice of opportunity 
for a hearing, including any identical, related, or similar drug product 
under Sec. 310.6, for which an opportunity for a hearing is waived or 
for which a hearing is denied. The Commissioner may defer or stay the 
action pending a ruling on any related request for a hearing or pending 
any related hearing or other administrative or judicial proceeding.

[50 FR 7493, Feb. 22, 1985; 50 FR 14212, Apr. 11, 1985, as amended at 50 
FR 21238, May 23, 1985; 55 FR 11580, Mar. 29, 1990; 57 FR 17996, Apr. 
28, 1992; 59 FR 14364, Mar. 28, 1994; 63 FR 5252, Feb. 2, 1998; 67 FR 
9586, Mar. 4, 2002; 68 FR 24879, May 9, 2003; 69 FR 48775, Aug. 11, 
2004]