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HOFFMANN-LAROCHE, INC. v. WEINBERGER

July 29, 1975

HOFFMANN-LaROCHE, INC., Plaintiff,
v.
Caspar W. WEINBERGER et al., Defendants



The opinion of the court was delivered by: GREEN

 JUNE L. GREEN, District Judge.

 This matter is before the Court on plaintiff's Motion for Summary Judgment and defendants' Cross-motion for Summary Judgment, or in the Alternative, to Dismiss. After hearing Arguments thereon, the Court makes the following findings of fact and conclusions of law.

 Plaintiff, Hoffmann-LaRoche Inc., has brought suit for declaratory and injunctive relief. It seeks a declaration that the Food and Drug Administration (the FDA) has acted contrary to the statutory requirements of the Food, Drug and Cosmetic Act, 21 U.S.C. § 301 (1970) et seq. and the rulemaking provisions of the Administrative Procedure Act, 5 U.S.C. § 553 (1970). Specifically, Hoffmann-LaRoche challenges the FDA's policy of permitting the introduction of a new drug in interstate commerce without first approving a new drug application for such drug as required by 21 U.S.C. §§ 331, 355 (1970). Further, it seeks to declare such policy void because it has been adopted without notice or publication of its proposed action in the Federal Register, thereby depriving interested parties of their right to comment on such policy prior to its adoption. *fn1"

 Plaintiff is a New Jersey corporation engaged primarily in the manufacture and sale in interstate commerce of pharmaceutical products. Hoffmann-LaRoche is the holder of three approved new drug applications for compounds which contain chlordiazepoxide or chlordiazepoxide hydrochloride (both hereafter referred to as "chlordiazepoxide"). Plaintiff markets these drugs under the trademark "Librium". Since 1959, when Hoffmann-LaRoche first filed a new drug application for chlordiazepoxide, Hoffmann-LaRoche has marketed the drug only after it has obtained approval by the FDA of its new drug applications.

 On January 20, 1975, plaintiff filed suit in the United States District Court for the District of New Jersey against Zenith Laboratories, Inc. and its subsidiary, Paramount Supply Corp., alleging infringement of plaintiff's patent on chlordiazepoxide. During the course of pretrial discovery in that case, plaintiff learned from officials of the defendant companies that they had begun to ship chlordiazepoxide capsules in interstate commerce. In March 1973, Zenith filed an abbreviated new drug application with the FDA on chlordiazepoxide. On February 27, 1975, plaintiff filed this action in district court. The FDA approved the new drug application submitted by Zenith Laboratories on March 7, 1975.

 This action brings before the courts again the troubled administration of the New Drug Amendments of 1962 designed to strengthen the FDA's regulation of new drugs. *fn2" The Federal Food, Drug and Cosmetic Act of 1938, 52 Stat. 1040, provided that new drugs introduced after 1938 be subject to regulatory clearance prior to their being sold in interstate commerce and for administrative suspension of such clearance if thereafter required for public safety. Under the 1938 Act, a new drug was defined as any drug which was not generally recognized by experts as safe. The 1962 New Drug Amendments extended the definition of "new drug" to require that proof of effectiveness, as well as safety, be submitted as part of a new drug application. The term "new drug" is defined in 21 U.S.C. § 321(p)(1970) as follows:

 
"(1) Any drug . . . which . .. is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof . . . or

 The 1962 New Drug Amendments changed the pre-marketing clearance procedures. Under the original 1938 Act, new drug applications were deemed approved within a fixed period unless the Secretary took affirmative steps to reject the application. However, the Amendments required the FDA to affirmatively express its approval of new drug applications prior to permitting the marketing of new drugs in interstate commerce.

 21 U.S.C. § 355 (1970) prohibits the introduction or delivery for introduction into interstate commerce of any new drug unless approval of an application is effective with respect to such drug. It further provides a scheme for the processing and approval of new drug applications. The required contents of a new drug application are specified. 21 U.S.C. § 355(b) (1970). The FDA is required to approve the application within 180 days or give the applicant notice of an opportunity for hearing. 21 U.S.C. § 355(c) (1970). After giving notice and opportunity for hearing, the FDA is required to either issue an order refusing to approve the application or issue an order approving the application. 21 U.S.C. § 355(d) (1970). Condemnation action may be instituted to seize drugs introduced into interstate commerce without section 355 approval. See, 21 U.S.C. §§ 331, 334 (1970). See also, 21 U.S.C. § 332 (1970).

 The crux of this controversy is the use by the FDA of the new drug application procedure as a sort of administrative holding action to regulate the sale and manufacture of "me-too" drugs. Me-too drugs are drugs which are chemically equivalent to a pioneer drug for which a full new drug application is in effect. It is estimated that five to thirteen me-too drugs exist for every new drug that has a FDA approved new drug application. It is the present policy of the FDA, termed an interim policy, to require the filing of an abbreviated new drug application by the manufacturers of each me-too drug where the pioneer drug has a full new drug application approved pursuant to 21 U.S.C. § 355 (1970). *fn3" The FDA's position is that marketing of these drugs may be permitted without the approval of each individual new drug application.

 The FDA advances two principal arguments to justify its policy. First, it claims that its compliance resources are limited and must be concentrated primarily in those areas where a potential health problem exists. Thus, the FDA has directed its compliance activities toward those drug products which have been found ineffective rather than toward those which have been found effective. *fn4" Second, for those drugs that the NAS/NRC have found effective and are widely recognized as safe and effective and no bioavailability *fn5" or special manufacturing problem is known or suspected, the need to police their distribution is minimal. Additionally, the FDA claims that it would have a difficult time in court contending that a specific version is a new drug within the meaning of 21 U.S.C. § 321(p) (1970).

 On the contrary, Hoffmann-LaRoche argues that the FDA's action is another example of its failure to follow the 1962 New Drug Amendments. Like the situation condemned in American Public Health Assoc. v. Veneman, supra, the FDA is again acting contrary to the clear statutory directives of section 355. Plaintiff contends that the plain meaning of section 355 dictates that once the FDA requires a new drug application to be filed, then the approval process must be completed before such drug can be marketed. See, Virginia March v. United States, 165 U.S.App.D.C. 267, 506 F.2d 1306, 1313-14 (1974); American Public Health Assoc. v. Veneman, 349 F. Supp. 1311, 1316 (D.D.C. 1972). It argues that the Congressionally expressed interest in public health and safety mandates no other choice. See, S.Rep. No. 1744, 87th Cong., 2d Sess., pt. 2, 36 (1962), U.S. Code Cong. & Admin. News 1962, ...


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