Regulatory Open Forum

 View Only
  • 1.  Sale of investigational devices

    Posted 13-Apr-2017 13:46
    Does anybody know if its possible to sell at cost (manufacturing and materials, no profit) an investigational medical device in the US for the purposes of clinical investigation? Again this is just to recoup the cost of materials and manufacturing for a clinical trial with no claims for the device. This option exists in Canada, but I have never done it for the US and not sure if it exists.

    ------------------------------
    Virginia Anastassova RAC
    RA Manager, Senior QA Specialist
    Starfish Medical
    Victoria BC
    Canada
    ------------------------------


  • 2.  RE: Sale of investigational devices

    Posted 13-Apr-2017 14:01
    Hi Virginia,

    I think this is what you are looking for - if not, please let me know.

    FAQs about IDE
    CFR - Code of Federal Regulations Title 21

    Under § 812.7, a sponsor, investigator, or any person acting for or on behalf of a sponsor or investigator cannot:

    • Commercialize an investigational device by charging the subjects or investigators a higher price than that necessary to recover costs of manufacture, research, development, and handling.

    Thanks,
    Liz

    ------------------------------
    Elizabeth Goldstein RAC
    Regulatory Affairs Specialist
    Medtronic Vascular
    Santa Rosa CA
    United States
    ------------------------------



  • 3.  RE: Sale of investigational devices

    Posted 13-Apr-2017 14:20
    Hi Liz,

    Do you know if you have to inform FDA that you are planning to charge for your investigational device and have the price approved by FDA?

    Thank you for your help!

    ------------------------------
    Virginia Anastassova RAC
    RA Manager, Senior QA Specialist
    Starfish Medical
    Victoria BC
    Canada
    ------------------------------



  • 4.  RE: Sale of investigational devices

    Posted 14-Apr-2017 12:32

    Yes: See item #9:

    https://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/HowtoMarketYourDevice/InvestigationalDeviceExemptionIDE/ucm046706.htm#reqele

    I can't predict how any FDA reviewer or division will apply this, but the two things that they (should) look for are 1) whether the amount you want to charge is consist with your claim that is just enough to cover manufacturing and materials and 2) a trial that seems to be using way more devices than seems necessary to meet study objectives.  I would include fairly detailed financials to support your claim of the total cost to manufacture the investigational devices (and probably not aim to recoup every last dime. 

    As for using too many devices, it depends on whether it's a one-device per site kind of device, or one or more per patient.  If one per site, then if you propose to conduct the study at an excessive number of sites, questions may be asked. If one or more per patient, then if you propose to enroll a lot more patients than are needed, questions may be asked.



    ------------------------------
    Julie Omohundro, ex-RAC (US, GS), still an MBA
    Principal Consultant
    Class Three, LLC
    Durham, North Carolina, USA
    919-544-3366 (T)
    434-964-1614 (C)
    julie@class3devices.com
    ------------------------------



  • 5.  RE: Sale of investigational devices

    Posted 15-Apr-2017 07:44
    Folks this whole discussion is on a topic which is really not large on FDA's radar screen because a) of the difficulty in actually dtermining the recoupment cost, FDA is not equipped to challenge that (but you say its never stopped them before��); and b) the actual cost of recoupment at the stage of a non-commercialized device is higher than a company could charge the market.  With reimbursement challenges standing in the way of most investigational and cleared/approved devices anyway, this is just not a focus of FDA's review.  My advice, just be reasonable and don't worry about it.  Of the many hundreds of devices we've counseled on in 35 years, I've never seen this challenged.  It used to be debated a lot more in the 80s and into the early 90s, but FDA has much bigger fish to fry today. 

    Mark DuVal, J.D., FRAPS
    DuVal & Associates, P.A.

    Sent from my Verizon, Samsung Galaxy smartphone





  • 6.  RE: Sale of investigational devices

    Posted 16-Apr-2017 09:14
    I agree FDA as a whole has other issues well ahead of this one on its priority list.  As for whether FDA is likely to "challenge" it, I'm not clear on what type of challenge you might see in the course of counseling on devices. 

    I don't know too many device companies that would seek legal counsel if the issue was cited as a deficiency during IDE review.  Perhaps if the FDA declined to approve the IDE on the basis of this issue, which strikes me as unlikely, except under circumstances where it probably should be rejected.  

    The scenario in which I think a device company would be most likely to seek legal counsel is if the FDA decided to put an ongoing IDE study on investigational hold.  If that's what you are referring to, this strikes me as unlikely, except, again, under circumstances where it probably should be put on hold.  That's because I think that, once the IDE is approved, the use of an IDE as cover for commercialization would have to be pretty blatant for it to come to FDA's attention.

    I guess another scenario in which a device company might seek legal counsel would be if the FDA declined to accept the data from an IDE study upon determining it had been used as a cover for commercialization.  How likely this might be, I can't even begin to guess.

    ------------------------------
    Julie Omohundro, ex-RAC (US, GS), still an MBA
    Principal Consultant
    Class Three, LLC
    Durham, North Carolina, USA
    919-544-3366 (T)
    434-964-1614 (C)
    julie@class3devices.com
    ------------------------------



  • 7.  RE: Sale of investigational devices

    Posted 16-Apr-2017 09:24
    A separate question in whether FDA rarely "challenges" this because it's not an FDA priority, or because it rarely needs to. 

    It's neither time-consuming nor expensive to address the issue in an IDE.  The information on manufacturing cost is readily available, as is a statistical justification for the number of proposed subjects and sites.  Although ODE is not in a good position to verify the claimed manufacturing costs, I would be surprised if FDA "challenged" them, and would expect this information to be adequate for FDA.

    On the other hand, if the company doesn't have manufacturing costs and/or a statistical justification in hand, that raises other questions that might indeed be cause for challenge.

    ------------------------------
    Julie Omohundro, ex-RAC (US, GS), still an MBA
    Principal Consultant
    Class Three, LLC
    Durham, North Carolina, USA
    919-544-3366 (T)
    434-964-1614 (C)
    julie@class3devices.com
    ------------------------------



  • 8.  RE: Sale of investigational devices

    Posted 14-Apr-2017 16:41
    Hi Virginia,

    It was nice to meet you at the Vancouver Chapter event last month. If you don't have an answer yet, the IDE is required to state whether you will charge for the device. See:

    21 CFR 812.20 (a)(8) If the device is to be sold, the amount to be charged and an explanation of why sale does not constitute commercialization of the device.

    Best regards,
    Kevin

    ------------------------------
    Kevin Hawkins, RAC
    Director, Quality & Regulatory Affairs
    Wilsonville OR
    ------------------------------



  • 9.  RE: Sale of investigational devices

    Posted 18-Apr-2017 12:45
    Thank you very much everyone for your input! I really appreciate the help! Do you know if the same rules apply for a non-significant risk device clinical trials where only IRB approval is needed?

    Thank you again!

    ------------------------------
    Virginia Anastassova RAC
    RA Manager, Senior QA Specialist
    Starfish Medical
    Victoria BC
    Canada
    ------------------------------