Hi Meghan.
I look at the term as FDA doing exactly what the term says - the FDA is
choosing not to enforce an
otherwise legally enforceable requirement. So in the case of devices, it could be that the FDA is looking and saying there is so little a risk in this device causing harm to a consumer in the present landscape that attempting to enforce this registration/listing/notification requirement on the marketplace would cause us to use significant amounts of already tight resources that it is truly something that the cost does not even break even on the "benefit". However, the key is to remember and understand that this is essentially a risk decision based on current state. If things in the area change or if companies start getting over-the-top with claims or uses or anything else that FDA might be able to take issue with and were to determine that these changes now require an update to the discretion calculus, the FDA has every right to essentially start enforcement of the issue immediately and truly does not legally (so far as I understand it) have to do anything except to start enforcing this. While FDA has often put out notices that it "intends to exercise enforcement discretion" on a particular topic, I don't think FDA is required to do this and therefore I also don't believe that FDA is required to put out a notice that says that they are rescinding that decision.
Let's just be realistic for a minute - FDA could never (with current or even foreseeable future) resources handle every single issue that could potentially arise. So they, like industry, have to choose where to place their limited resources for the most effective, efficient and pragmatic use of the limited resources available. So by stating they are exercising discretion, they are essentially stating that they are not choosing to spend agency resources (time, personnel, money, etc.) on handling something that they do not see a current problem.
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Victor Mencarelli
Director Regulatory Affairs
United States
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Original Message:
Sent: 01-Feb-2019 12:36
From: Meghan Moore
Subject: FDA Enforcement Discretion - Submission Type
Hello -
As I am researching product classifications and product codes I have come across a few items that have a submission type of 'Enforcement Discretion'. What exactly does "enforcement discretion' mean?
Thank you.
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Meghan Moore
Regulatory Affairs Specialist
Andover MN
United States
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