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  • 1.  Distributors' QMS certified by NB according to EU MDR

    Posted 29-Sep-2020 05:55
    Hi,

    it was said in article MDR, IVDR, and compliance: A guide for distributors published in RAPS Regulatory Focus yesterday that distributors performing certain activities are obligated to implement a QMS that has been certified by a notified body, as outlined in Article 16 of the MDR.

    I cannot find this when I try to look it up in Article 16. Am I missing something...?

    Best regards,
    Tiina Tyni
    RA Consultant


  • 2.  RE: Distributors' QMS certified by NB according to EU MDR

    Posted 30-Sep-2020 02:37
    Hi Tiina,

    please check paragraph 4 under article 16 where it says that: ".... the distributor or importer shall submit to the competent authority a certificate issued by a notified body....".

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    Klaus-Dieter Ziel
    Hamburg
    Germany
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  • 3.  RE: Distributors' QMS certified by NB according to EU MDR

    Posted 30-Sep-2020 02:55
    ".... the distributor or importer shall submit to the competent authority a certificate issued by a notified body...." is completely different than "distit ributors performing certain activities are obligated to implement a QMS that has been certified by a notified body".

    Ofcourse the distributors must have the certificates of the manufacturer, but it is not mandatory to have their QMS certified. It is very common though and the best practice, but it is not mandatory. They are not expected to have a QMS compliant with MDR and certified by the NB as the manufacturer. Usually they have an ISO 13485 certificate for distribution.

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    Spyros Drivelos
    Medical Devices Expert, RAC
    Agia Paraskevi, Athens
    Greece
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  • 4.  RE: Distributors' QMS certified by NB according to EU MDR

    Posted 30-Sep-2020 03:28

    Hi,

    to summarize our discussion: there is no general obligation that distributors and importers must be certified by a notified body. But if a distributor or an importer change the intend prupose of a device already placed on the market or put into service or modifies a device already placed on the market or put into service in such a way that compliance with the applicable requirements are affected, than he needs a certificate from a notified body.

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    Klaus-Dieter Ziel
    Hamburg
    Germany
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  • 5.  RE: Distributors' QMS certified by NB according to EU MDR

    Posted 30-Sep-2020 04:27
    I absolutely agree. Article 16 needs to be covered if a distributor performs certain specific activities on the product. Depending on the scope of it´s activities the distributor needs to have a certificate by a Notified Body for exactly these activities.

    The statement "the distributor or importer shall submit to the competent authority a certificate issued by a notified body" does not refer to the manufacturers certificate; it refers to a specific certificate for the distributor´s activities.

    Now in theory, only the performed activity needs to be certified (e.g. regulatory relevant overlabeling), however, since most, if not all of the activities mentioned in Art. 16 are seen as medical device manufacturing activities, you need to have a MD manufacturer QMS, therefore ISO 13485 (certainly you can exclude some of the paragraphs, e.g. Design).


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    Markus Lantermann
    Head of Q&R Region International
    Mannheim
    Germany
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  • 6.  RE: Distributors' QMS certified by NB according to EU MDR

    Posted 30-Sep-2020 04:39
    The distinction you made, Spyros, between product certification and QMS certification was spot-on. It got me confused in the first place.

    Klaus-Dieter, you summarised the main point well. However, I'm still a bit hesitant as to what about EU MDR Class I manufacturers (and distributors which assume the obligations of manufacturers per Article 16). Class I devices are self-certified, and the QMS can be certified by a non-NB certification organisation. I don't think NB is needed in this case at all, neither by the manufacturer nor the distributor even if the latter changes the intended purpose or otherwise modifies the device, if the risk class remains as Class I.

    Please correct me if I'm wrong.

    -Tiina

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    Tiina Tyni
    Regulatory Consultant
    Finland
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  • 7.  RE: Distributors' QMS certified by NB according to EU MDR

    Posted 30-Sep-2020 06:40
    Dear Tiina,

    to my understanding article 16 does not destinguish between different risk classes. This means to me, if a distributor or importer is doing these specific activities even on class I devices only, he needs a certificate issued by a notified body.

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    Klaus-Dieter Ziel
    Hamburg
    Germany
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  • 8.  RE: Distributors' QMS certified by NB according to EU MDR

    Posted 30-Sep-2020 07:37
    Dear Tina,

    Article 16 does require that in certain instances that obligations of manufacturers apply to importers and distributors.  However these are limited to  three conditional situations.

    The first is where the importer or distributor places the product on the market a device under its name, registered trade name or registered trade mark, and even then is does not apply if the distributor or importer enters into an agreement with a manufacturer
    whereby the manufacturer is identified as such on the label and is responsible for meeting the requirements placed on manufacturers .

    I read this to say that if the actual manufacturer is identified on the label as the manufacturer, even if the distributors name is on the device, and there are agreements that clearly state the the manufacturer is responsible for all manufacturing requirements, then the importer or distributor does not assume any of these responsibilities, including the requirement for a QMS certified by a NB.

    The other two condition are obvious and only apply when the device is modified or the intended use is changed.

    I believe the article does state the QMS requirements apply to "distributors performing certain activities" however, by not mentioning these activities it could be misleading in seeming to imply that this requirement to have a QMS certified by a NB applied to all distributors and importers.

    Lee

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    Lee Leichter RAC, MBA
    President
    P/L Biomedical
    Fort Myers FL
    United States
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  • 9.  RE: Distributors' QMS certified by NB according to EU MDR

    Posted 01-Oct-2020 04:38

    Dear All,

    This is a great discussion. 
    We will discuss Article 16 during EURO Convergence under the topic Economic Operator.  Eric, the author of the Focus article and I will in particular address this topic and should be subject to the panel discussion.

    Therefore, I am looking forward to your feedback in order to get the latest interpretation of this topic covered.

     

    Article 16 may be approached with the MDD history in mind in order to recognize the purpose of this regulation.  This may help also to find other solution.

    1. OEM – PLM aspects

    This was well established with the MDD but is not liked by the authorities and significant hurdles have been put in place.  Article 16 exactly covers this. 

    • If someone puts his name on the product then he is the Manufacturer. Please be mindful on the definition of the manufacturer. The manufacturer does not need to design or produce the product.  All of it can be outsourced. 

    "1.  A distributor, importer or other natural or legal person shall assume the obligations incumbent on manufacturers if it does any of the following:

    (a) makes available on the market a device under its name, registered trade name or registered trade mark"

    The OEM and PLM is therefore still possible but it is made clear that the PLM is the manufacturer. May be that was not always understood with the MDD.

    In order to avoid becoming the manufacturer a solid solution is provided:

    • A solution, which is being done in the industry already today! The manufacturer is identified (with the symbol) and distributor brand is shown on the front. The addition to the MDD is that this must be fixed in an agreement (does not have to be in writing but I would recommend that).

    "except in cases where a distributor or importer enters into an agreement with a manufacturer whereby the manufacturer is identified as such on the label and is responsible for meeting the requirements placed on manufacturers in this Regulation;"

     I believe Article 16.1 (b) and (c) are self-explanatory.  If a distributor, importer or for that matter anone change the product then he is the manufacturer.  EXCEPT FOR repackaging and/or translation!

     

    1. Changes of packaging and providing translations independently performed by the manufacturer

    Under the MDD in particular the translation was viewed as well a significant change and Manufacturers restricted the market with the help of notified bodies (NB rightly so considered a translation critical).  However, Manufacturer indeed tried to control the EU market establishing different pricing in the different EU member states with the translations (regulatory most of the time was not even aware of that - ask your sales!).  This is a fundamental issue in Europe and the Commission is very vigilant of the free market.  Already under the MDD a distributor won a case against his supplier, the manufacture to translate and to distribute the product in other markets within the EU.  However, the ruling was stating that he should be certified for these activities.

    • This is what is reflected in the MDR and the Importer or Distributor must get these activities under control. One aspect I learned here is that this is not dependent on the risk class. Interesting !

    Now, what happens if a manufacturer and a distributor agree that the distributor will perform the translation and repackaging on behalf of the manufacturer?



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    Ludger Moeller
    President, MDSS GmbH
    l.moeller@mdssar.com
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  • 10.  RE: Distributors' QMS certified by NB according to EU MDR

    Posted 01-Oct-2020 07:35
    Edited by Tiina Tyni 01-Oct-2020 07:36
    Indeed, I didn't anticipate such a rich exchange. Really interesting to see Article 16 through MDD history and even acknowledge free market fundamentals, which you pointed out Ludger. As for your question "what happens if a manufacturer and a distributor agree that the distributor will perform the translation and repackaging on behalf of the manufacturer", is it again just a matter of agreement between the parties? The leeway doesn't seem to be prohibited in the MDR (even if in your point 2. it was overruled).

    To conclude and to come back to my original puzzle, whether distributors are obligated to implement a QMS that has been certified by a notified body, I would now understand that it refers to what Markus said: a specific certificate for the distributor´s activities. I was quite selfishly concentrating on risk class, especially Class I devices, and therefore wondering what would be the notified body's role for self-certified devices. But now I realise the focus is the activities rather than devices as such. So the distributor contacts a NB to get the certificate. Article 16 does not give any insight into how that process would go. Perhaps it depends on the NB.

    I appreciate the input from everyone. I learned a lot from this discussion.

    Best regards,
    Tiina

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    Tiina Tyni
    Regulatory Consultant
    Finland
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