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96–196 PDF 2004

S. HRG. 108–635

THE LAW OF BIOLOGIC MEDICINE

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JUNE 23, 2004

Serial No. J–108–85

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 140

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4

prepared statement .......................................................................................... 143

Schumer, Charles E., a U.S. Senator from the State of New York ..................... 30

WITNESSES 

Beier, David, Senior Vice President, Global Government Affairs, Amgen, Inc., 

Washington, D.C. ................................................................................................. 21

Ben-Maimon, Carole, M.D., President and Chief Operating Officer, Barr Research, Inc., Bala Cynwyd, Pennsylvania .......................................................... 24

Crawford, Lester, Acting Commissioner, Food and Drug Administration, Rockville, Maryland, accompanied by Daniel Troy, Chief Counsel, Food and 

Drug Administration, Rockville, Maryland ........................................................ 7

Hancock, William, M.D., Bradstreet Chair of Bioanaltical Chemistry, Northeastern University, Boston, Massachusetts ....................................................... 25

Schultz, William B., Zuckerman Spaeder LLP, on behalf of the Generic Pharmaceutical Association, Washington, D.C. ......................................................... 19

QUESTIONS AND ANSWERS 

Responses of David Beier to questions submitted by Senators Hatch, Leahy, 

Durbin, and Schumer ........................................................................................... 39

Responses of Carole Ben-Maimon to questions submitted by Senators Leahy, 

Durbin, Schumer, DeWine ................................................................................... 60

Responses of Lester Crawford to questions submitted by Senators Hatch, 

Durbin, Schumer, Biden ...................................................................................... 64

Responses of William Hancock to questions submitted by Senators Hatch 

and Durbin ............................................................................................................ 72

Responses of William B. Schultz to questions submitted by Senators Hatch, 

Leahy, Durbin, Schumer ..................................................................................... 76

SUBMISSIONS FOR THE RECORD 

Beier, David, Senior Vice President, Global Government Affairs, Amgen, Inc., 

Washington, D.C., prepared statement .............................................................. 79

Ben-Maimon, Carole, M.D., President and Chief Operating Officer, Barr Research, Inc., Bala Cynwyd, Pennsylvania, prepared statement ....................... 107

Crawford, Lester, Acting Commissioner, Food and Drug Administration, Rockville, Maryland, accompanied by Daniel Troy, Chief Counsel, Food and 

Drug Administration, Rockville, Maryland, prepared statement ..................... 122

Hancock, William, M.D., Bradstreet Chair of Bioanaltical Chemistry, Northeastern University, Boston, Massachusetts, prepared statement .................... 136

Schultz, William B., Zuckerman Spaeder LLP, on behalf of the Generic Pharmaceutical Association, Washington, D.C., prepared statement ...................... 145

(1)

THE LAW OF BIOLOGIC MEDICINE 

WEDNESDAY, JUNE 23, 2004 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:17 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Leahy, Durbin, and Schumer. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Good morning. I apologize for being late. This 

morning has been a very hectic morning for me, so I apologize to 

all of you who have had to wait. 

For those of you who came here for the previously scheduled judicial nominations hearing, let me just say this: Boy, are you in for 

a big surprise. 

[Laughter.] 

Chairman HATCH. I just hope it is not too dull a surprise for you 

and that you enjoy a good debate over the proper reach of Section 

505(b)(2) of the Federal Food, Drug and Cosmetic Act. 

Today, the Judiciary Committee will consider a complex subject 

area that involves law, economics, science and medicine. The purpose of the hearing is simple, although the law and science surrounding these issues are not. We will explore some of the key 

issues concerning the legality, feasibility and advisability of creating a new, abbreviated regulatory pathway at the Food and Drug 

Administration for the review and approval of off-patent biological 

products. 

First, for those of you who may not be sure what a biologic is, 

I would like to offer a simple working definition. Biological medicines are large, complex protein molecules derived from living cells 

often by recombinant DNA technology. The area of biologics is of 

growing medical and economic importance. The biotechnology market posted a total of about $30 billion in sales last year, which is 

now expected to double to over $60 billion by 2010. 

We will see a concurrent explosion in the numbers of biologics. 

There are now over 150 FDA-approved products on the market, 

with an additional 350 in various stages of human clinical testing, 

and over 1,000 others in the developmental pipeline. 

But more important than commercial considerations, it is the 

hope of many that biological products such as those that may 1 day 

be developed from embryonic stem cells could lead to cures to many 

2

diseases that cannot be successfully treated today. Biopharmaceuticals appear to represent the future of medicine. 

For example, now that we have mapped the structure of the 

human genome, we are in a position to unravel the mysteries of the 

function of human genes and the proteins that they encode. Nothing less than a revolution in our understanding of human health 

and disease is well underway. I am proud of the fact that scientists 

at the Huntsman Cancer Institute at the University of Utah are 

helping to lead the way. 

The old model of large-patient-population, small-molecule medicine is giving way to large-molecule, small-patient-population 

therapies. The day may even come when individualized therapies 

will become common. These developments, of course, are not going 

to occur overnight, nor will they occur without great effort and ingenuity, and they will not be done on the cheap. One thing is certain. When medical breakthroughs occur, patients will want access 

to these new products and their families and third-party payers 

will want to pay as little as possible for them. 

Experts remind us that this new wave of therapeutic protein 

molecules is more complex to discover, manufacture and use than 

conventional small-molecule drugs. We know that many of these 

new biological products tend to be more expensive than old-line, 

chemically-synthesized drugs. Some of these new wonder therapies 

cost over $10,000 per year or per course of treatment. For example, 

human growth hormone can cost $25,000 per year. 

Cost factors alone compel a thorough examination and public discussion of the merits of developing a fast-track review and approval 

system that can reduce the price of biopharmaceuticals once patents expire. Moreover, from a regulatory reform perspective, it 

should always be the goal of Government to employ the least burdensome regulatory approach without compromising other important considerations, such as in this case patient safety and protection of intellectual property. 

Former Commissioner of Food and Drugs and current CMS Administrator Dr. Mark McClellan, who took time from his busy 

schedule last week to visit Utah and meet with Senator Bennett 

and me and other Utahns on the new Medicare drug program, has 

recognized the confluence of medical, economic and regulatory 

forces at play. 

Our society can ill afford to avoid a debate over the proper regulation of follow-on biologics. We simply cannot sustain over time 

programs such as Medicare unless we seriously explore what steps 

might prudently be taken to end an FDA regulatory system that 

effectively acts as a secondary patent for off-patent biological products. 

Patient safety and product efficacy must remain at the forefront 

of this discussion. The task before policymakers is to consider how 

to maintain product safety and efficacy as we consider ways to 

eliminate unnecessary regulatory hoops for off-patent biological 

product license applications. 

I will stipulate that it will be difficult to manufacture some generic equivalents of off-patent biologicals. Some products will, no 

doubt, be more difficult than others to reverse-engineer. There will 

be technical issues galore. Some may actually prove impossible to 

3

duplicate without trade secret information, but from what I have 

heard, many products will be able to be safely duplicated. 

I believe that many, if not all, follow-on biologicals will require 

at least some form of human clinical testing. I also believe that the 

Federal Government would be very wise to consider providing taxpayer funding for the development of process validation guidelines 

that will help establish the critical manufacturing steps and assay 

parameters for medically or commercially significant off-patent biological products. 

I also think it would be wise to consider commissioning or otherwise sanctioning studies by organizations such as the United 

States Pharmacopeia or the Institute of Medicine, in collaboration 

with the FDA and other interested parties, to identify and address 

the technical issues that need to be resolved in order to fast-track 

approvals for off-patent biopharmaceuticals. 

I have known and worked with Acting Commissioner of Food and 

Drugs Crawford for many years. I appreciate him and the service 

that he has given to our country. 

I look forward to working with you, Dr. Crawford, and other experts at the FDA on this important issue. 

I know that Dr. Crawford will make this an important priority, 

and look forward to seeing the draft guidelines when they are 

issued later this year. I trust that Chief Counsel Dan Troy and 

Deputy Commissioner Amit Sachdev and Liz Dickinson and Jerilyn 

Dupont will provide sound legal and policy advice. I have great 

faith in all of them. 

As a coauthor of the Drug Price Competition and Patent Term 

Restoration Act of 1984, I firmly believe that whatever we do on 

the legislative front should observe a principle of attempting to balance incentives for both pioneer and generic drug firms. While I am 

all for rolling up our sleeves to work to help develop an abbreviated 

approval system for off-patent biologics, we must be properly respectful of the intellectual property of the research-based firms because this is what undergirds the whole pharmaceutical enterprise. 

As we proceed into this new era of drug discovery, it is important 

to ask whether our current intellectual property laws relating to 

pharmaceutical research and development are adequate to promote 

large-molecule, small-patient-population medicine in the future. 

For example, I have long thought the way we treat process patents 

under Hatch-Waxman should be reexamined in this new era of patient population medicine in which process patents will become 

more important and in which the relative importance of such patents will increase. 

Difficult policy questions will crop up in a very difficult climate 

for the research-based pharmaceutical industry—of course, 

everybody’s favorite whipping boy in an election year. Senator 

Lieberman and I have advanced an aggressive set of private sector 

incentives in our bipartisan bioterrorism bill. I plan to hold a hearing on the Lieberman-Hatch bioterrorism bill, and we urge that all 

interested parties review the IP provisions of this legislation and 

help us to get it right in every way. 

Twenty years ago, we faced many challenges in fairly balancing 

the incentives and various interests when we came together on 

Hatch-Waxman. Frankly, I recognize that many in the bioVerDate 0ct 09 2002 11:43 Oct 07, 2004 Jkt 096196 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96196.TXT SJUD4 PsN: CMORC
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technology industry believe that the creation of a fast-track approval process for off-patient biologics is the worst nightmare of a 

highly competitive, inherently risky industry struggling to attract 

the capital necessary to bring new products through FDA approval 

and into the marketplace. 

Let me close by suggesting an alternative and perhaps preferable 

strategy to scorched earth litigation. Rather than just saying no, 

please consider engaging in a constructive public policy dialogue 

that focuses on identifying the legitimate scientific and legal obstacles that must be overcome in order to create a fast-track approval 

system for off-patient biologics. At the same time, come forward 

with ideas that will improve the legal environment for pioneer biotechnology firms. That is what we did back in 1984 and that is 

what we can do today if we all work together on follow-on biologics 

and other matters. If we have the right balance in the law, the 

American public only stands to benefit. 

So this is a very important hearing. The information that we will 

receive here today will go a long way, I hope, to helping us to resolve these problems. But this is one of medicine’s most important 

areas of study and it is one of the most significant areas of problematic work that we have ahead of us. And I just hope that we 

can all work together to do this in the best possible way and that 

we can keep this out of the realm of politics and put it in the realm 

of doing what is right. If we do that, this country will continue to 

be the major leader in the world and we will do a great deal for 

people all over the world. 

With that, I apologize for taking so long, but I had to get these 

ideas out, and hopefully they will get out so that people can help 

us to do a better job here. We will turn to our Democrat leader on 

the Committee, Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you very much, Mr. Chairman, and 

I don’t think any apologies are necessary. I think it is an extremely 

important issue and I applaud you for holding this hearing. 

Dr. Crawford, it is good to see you. I should note that Commissioner Crawford and I worked together on a whole number of agricultural food safety issues when I was Chairman of the Agriculture 

Committee and you were at USDA. It is good to see you again. It 

was always good to see you back then. 

I should note, Mr. Chairman, that Dr. Crawford and I were adding up the number—he has got one more grandchild than I do, but 

both of us put together don’t begin to match you. So we will give 

you the crown on that one. 

Biologic therapies fight life-threatening diseases and disorders, 

and I think we should all understand that. In many cases, these 

therapies are orders of magnitude more effective than drug therapies. The most famous biologic treatment saved millions of lives 

and has eradicated epidemics which, in the 1930’s and 1940’s, created mass panics each summer. Indeed, the first major outbreak of 

polio in the United States was in Vermont during the summer of 

1894. You go around to some of our graveyards and you see the reference to that. 

5

Rather than using the powerful tools of molecular biology, physicians back then willy-nilly came up with therapies such as concocting an emulsion from the ground-up spinal cords of polio-infected monkeys. They added other chemicals to that witch’s brew, 

but one researcher, Dr. Jonas Salk, added formalin to the mix and, 

of course, the rest is history. This changes the lives of people for 

the better all over the world. I am old enough to remember the 

summer when all the municipal swimming pools would close and 

all the rest, the little iron lung things to put your money in for research. 

Well, today, research for new biologic therapies is no longer an 

endless guessing game. Potent new technologies hold the promise 

to develop completely new classes of therapies to prevent, treat or 

cure otherwise inevitable or untreatable or incurable diseases. 

These new technologies are being focused on the horrors of cancer, 

cystic fibrosis, hemophilia, AIDS, Alzheimer’s and multiple sclerosis. Those are just some of the many areas. For example, breakthrough biologic therapies such as Avastin starve cancer tumors of 

the blood supply that they need to grow. Activase greatly reduces 

the otherwise permanent disabling effects of strokes in adults. 

Biologic technologies also hold out the best hope for those suffering from certain rare diseases that afflict 25 million Americans, 

including 58,000 Vermonters in my little State. But biologic therapeutics often cost far more than traditional drugs. One reason is 

they are a lot more complex chemically and they are more difficult 

to manufacture. I think we have to address this approval issue now 

because the patents on many biologic therapies are going to expire 

in the next few years. 

With respect to drugs, Chairman Hatch and Congressman Waxman played crucial roles—I can’t overstate what they did—crucial 

roles in developing a fast-track process to get less expensive, safe 

and effective generic drug alternatives into the marketplace under 

the Hatch-Waxman law. But a clear fast-track pathway doesn’t 

exist for biologic therapies under our current law, so the critical 

question we face today is should Congress design a fast-track process for generic versions of these biologic innovations. 

My own answer is yes, but only if what we do is based on sound 

science, if these alternative therapies are safe and effective, if they 

will help prevent shortages, and if these biologics would provide 

less expensive but potent alternatives for consumers. 

I know that generic biologics are now available in Eastern Europe and Asia. Many point out that these biologics have been safe 

and effective and are less expensive than the original products in 

those countries. Others urge that we cannot be sure of the safety 

or legality of these products. 

It may be that a sliding-scale approach is needed for the U.S. 

Perhaps the level of scrutiny should intensify with the increasing 

complexity of the molecules involved, the sensitivity of the formulation process, and the risks of deviation from the patent process. 

Science has to rule this decision, not politics, not greed, not the 

cloud of powerful vested interests. We need to do the right thing 

for millions of affected families. They are depending upon us to do 

the right thing. 

6

I do want to work together to find a faster way to get more of 

these valuable therapies available at lower prices to consumers 

without sacrificing safety. The people who have these diseases, 

whether it is Alzheimer’s, multiple sclerosis, or some of the other 

things I have mentioned—nobody asks whether they are Republicans or Democrats or independents. They are Americans. 

Throughout the rest of the world, there are so many millions more 

who are affected. We in this wonderful, great country can help find 

the cures, and we can do so much for the people of our own Nation 

and throughout the world, as we did with the polio vaccine. 

So I hope all the stakeholders will participate in this process. 

The testimonies of Dr. Ben-Maimon and David Beier present a useful point and counter-point on both sides of this issue. Mr. Beier 

also raises complex trade secret issues. The bottom line, of course, 

is you have to have a careful balancing of interests and recognition 

of patent and trade secret rights. 

We need to work together for the families who are going to be 

helped by this approach. I am glad we are beginning this. Again, 

I applaud the Chairman for starting these hearings. He knows and 

I know it could be a long road, but it is one where we all have to 

work together, for the benefits to the people of this great country 

are so huge if we do it right. 

So thank you, Mr. Chairman, for doing this. 

Chairman HATCH. Well, thank you, Senator Leahy. 

Let me welcome our distinguished witnesses here today. On the 

first panel, we will have the Acting Commissioner of the Food and 

Drug Administration, Dr. Lester Crawford. 

We welcome you to the Committee once again, Dr. Crawford. 

Dr. Crawford has a distinguished career and we value his leadership in protecting the public safety. Most recently, he worked very 

hard to protect the U.S. food supply from the threat of mad cow 

disease and we are all grateful for his efforts. 

In addition, I went to the opening ceremony for the new, unified 

FDA life sciences laboratory that is being built at the White Oak 

campus to replace the 38 different buildings throughout the region 

that are currently used for FDA offices. It is really a very, very impressive facility and I encourage all my colleagues to visit. Of 

course, it is just the beginning of that White Oak campus, but once 

we get that built—and that is pursuant to the FDA revitalization 

bill we passed over 10 years ago—once we get that built, there is 

no place in the world that will be able to compare from a food and 

drug regulatory standpoint with FDA, and that is long overdue. 

I also want to extend a warm welcome to Dan Troy, who is accompanying Dr. Crawford this morning. Mr. Troy is the Chief 

Counsel of the Food and Drug Administration. These are two great 

public servants and I just want everybody to know it. 

So we will turn the time to you, Dr. Crawford. We really appreciate the service you give. 

7

STATEMENT OF LESTER CRAWFORD, ACTING COMMISSIONER, 

FOOD AND DRUG ADMINISTRATION, ROCKVILLE, MARYLAND; ACCOMPANIED BY DANIEL TROY, CHIEF COUNSEL, 

FOOD AND DRUG ADMINISTRATION, ROCKVILLE, MARYLAND 

Dr. CRAWFORD. Mr. Chairman and members of the Committee, 

I appreciate very much the opportunity to be here and to participate in this important hearing on the subject of follow-on proteins. 

FDA and the Congress share a great concern for senior citizens 

and other patients who have difficulty paying for prescription 

drugs. FDA has taken a number of significant steps to promote 

greater access to affordable prescription medications, including unprecedented steps to lower drug costs by helping to speed the development and approval of low-cost generic drugs. 

Since its enactment in 1984, Hatch-Waxman has governed the 

generic drug approval process. In general, the law has been working well. Since 1984, over 10,000 generic drugs have entered the 

market and generics now account for close to 50 percent of prescriptions filled. The agency is now approving generic drugs at an 

average rate of one per day. 

Medical innovation is a complex process, but one that can bring 

great value to patients. To realize the full benefits of medical innovation, it is important to adopt policies that protect incentives to 

develop new drugs and medical devices. Achieving this goal requires a delicate effort to strike a proper balance. Promoting innovation requires the right mix of incentives, safeguards and effective 

regulation to secure maximum benefit from safe and effective new 

medical technologies, while assuming mechanisms for broad and 

equitable access to these new treatments. 

FDA has different statutory approval mechanisms for drugs and 

most biological products. I say most biological products because 

many biological products are also drugs, as that term is broadly defined in the Food, Drug and Cosmetic Act. 

Traditionally, some natural-source proteins have been regulated 

as drugs, including insulin and human growth hormones, while 

other natural-source proteins such as blood factors are regulated as 

biological products. Currently, some proteins are licensed under the 

Public Health Service Act and some are approved under the FD&C 

Act. 

FDA approves new drugs, as distinguished from biological products, under approval mechanisms found in Section 505 of the 

FD&C Act, and licenses most biological products under Section 351 

of the PHS Act. Full, new drug applications under Section 505 of 

the FD&C Act and biologics license applications under the PHS Act 

require submission of complete reports of clinical and animal data 

to support approval. 

For drugs approved under the FD&C Act, manufacturers can 

apply to FDA under Section 505(j) of the FD&C Act for approval 

of generic versions of the brand products after the patent and other 

exclusivity periods expire. This process is known as the Abbreviated New Drug Application, or ANDA, process. 

Section 505(b)(2) also provides for the approval of NDAs supported by the scientific literature or by FDA’s earlier finding that 

a drug is safe and effective. Both the ANDA and the 505(b)(2) approval processes incorporate consideration of the innovator’s intelVerDate 0ct 09 2002 11:43 Oct 07, 2004 Jkt 096196 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96196.TXT SJUD4 PsN: CMORC
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lectual property rights into the drug approval process. The ANDA 

process in Section 505(j) was established through the 1984 HatchWaxman amendments. This is an abbreviated approval mechanism 

for generic versions of drugs approved under Section 505 of the 

FD&C Act. 

The ANDA process does not require the drug sponsor to repeat 

costly animal and clinical research on ingredients or dosage forms 

already approved for safety and effectiveness. By establishing that 

the drug product described in the ANDA is the same as the innovator drug product approved in the NDA, the ANDA applicant can 

rely on the agency’s finding of safety and effectiveness for the drug. 

The FD&&C Act provides the ANDA and 505(b)(2) abbreviated 

approval pathways for drugs approved under Section 505 of that 

Act. However, the PHS Act has no similar provisions. The approval 

of generic or follow-on protein and peptide products has both scientific and legal dimensions. 

First, as a scientific matter, FDA believes that for some protein 

products regulated under 505 of the Act, science has progressed 

sufficiently that we are able to assess the degree of similarity or 

identity between the innovator and a follow-on product. Prior to 

publishing a draft guidance document, FDA intends to have a 

major scientific workshop, in conjunction with the Drug Information Association, to explore this issue. FDA is still considering a 

separate process to address the legal and regulatory issues. 

Today’s hearing is an important part of that discussion and I 

thank you, Chairman Hatch, for holding it. 

Chairman HATCH. Thank you, Dr. Crawford. In your testimony, 

you talk about many unanswered scientific, legal and policy questions about the follow-on versions of biological products approved 

under Section 351 of the Public Health Service Act that must be 

explored, and that the FDA plans on promoting public dialogue on 

these questions. 

Now, what do you anticipate some of these questions to be, and 

how will FDA promote public dialogue to find answers to these 

questions? 

Dr. CRAWFORD. Well, what we will do is, as I announced, we are 

going to have this scientific workshop. We will be joined by the 

Drug Information Association and it will be a well-managed workshop where questions will be posed to the participants, and it will 

be structured in such a way that we come out with a set of common 

understanding about what is needed in order to regulate follow-on 

proteins, as they are generally called. We also will get information 

from deliberations that the European Union has had on this same 

subject, and also from other trading partners around the world. 

But what we really need is to determine how do we go through 

the scientific and regulatory process of ascertaining that a product 

is either identical or has enough characteristics in terms of the active ingredient of the molecule to where we can declare it is, in 

fact, worthy of consideration as a generic. 

The term ‘‘generic,’’ as you know, essentially means ‘‘the same,’’ 

and we are not sure, with the kind of science that we have, that, 

in fact, we are ready for that kind of determination with many of 

these large molecules, as you put it in your opening statement. So 

9

we need help in this direction. FDA has not made its mind up 

about it. We need to know more about the science. 

We find, as you know, that we get great answers from industry 

because they are dealing with the problems everyday, and we look 

forward to involving them in this process, as well as the academic, 

medical and scientific communities. 

Chairman HATCH. As you know, the cost of prescription drugs 

has been an issue of importance to many Americans, and Congress 

has been working on various legislative proposals to try and address this matter. I believe that enacting the Medicare prescription 

drug law last year was a step in the right direction. All Medicare 

beneficiaries will soon have access to the Medicare prescription 

drug program, and lower-income beneficiaries will receive significant help and relief from their drug expenditures. 

The Medicare prescription drug law encourages drug plans to 

offer generic drugs to Medicare beneficiaries when appropriate, 

which is one important way to find savings. Now, in fact, in your 

testimony you state that generic drugs typically cost 50 to 70 percent less than their brand-name counterparts, and that they are 

bioequivalent. 

Now, according to CBO, generic drugs save consumers an esti- mated $8 to $10 billion a year at retail pharmacies. I was told by 

Mark McClellan just a few days ago that actually that figure is 

even higher today as a result of Hatch-Waxman that consumers 

are saved. 

Do you believe that generic biologics, if they could be developed, 

would provide Americans with similar savings? 

Dr. CRAWFORD. I think it is too soon to say. As I mentioned, the 

European Union is moving in sort of the same kind of direction, 

but no country or group of countries has experience with this to the 

extent that they can say what the savings would be. 

These are difficult molecules, as all of you know, to characterize, 

and so how many generics, if you will, once we work out the regulatory and scientific issues, will enter the market for each one that 

is approved as an innovator product we can’t say at this time. We 

do know that some biologics are, as you mentioned, very costly indeed. And so even the introduction of one other competing product 

will surely lower the cost, but it is not possible to say whether or 

not it will be the same percentage as the 50- to 70-percent figure 

that we have with standard drugs. 

Chairman HATCH. Okay. Now, to what extent do you think Section 505(b)(2) of the Food, Drug and Cosmetic Act applies to biologics? You might want to have Mr. Troy help us with that one as 

well. 

Dr. CRAWFORD. I would very much want to have Mr. Troy join 

me. He is our chief counsel. 

Chairman HATCH. Well, I think it would be good to have his testimony on that. 

Mr. TROY. Thank you, Senator Hatch. 505(b)(2) by its terms applies only to the Food, Drug and Cosmetic Act and to 505 products. 

FDA does not believe that 505(b)(2) applies by its terms to products 

that have been approved under Section 351. 

But as Dr. Crawford mentioned, there are a variety of proteins, 

human source proteins—insulin, human growth hormone and othVerDate 0ct 09 2002 11:43 Oct 07, 2004 Jkt 096196 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96196.TXT SJUD4 PsN: CMORC
10

ers—which have been approved under the 505 pathway, in part 

some of these for historical reasons. So where the science and the 

law is there, we believe that follow-on proteins may perhaps be 

provable using 505(b)(2). 

Chairman HATCH. Well, that is helpful. Just keep helping us up 

here to understand this, okay, because this is complex to all of us. 

Senator Leahy, if you would care to— 

Mr. TROY. Sorry. I talk too much like a lawyer sometimes. 

Chairman HATCH. Well, I am glad to hear that, to be honest with 

you. 

Senator LEAHY. You would be surprised the number of lawyers 

who show up here at all kinds of hearings, and some even on this 

side of the dais. 

Chairman HATCH. And I can say some are better than others, 

too. 

[Laughter.] 

Senator LEAHY. That is true. Of course, those on this side, both 

Republicans and Democrats, are the best, but that is okay, although I must admit there are days when we are here that I miss 

those days in the courtroom. 

Commissioner Crawford, as I said earlier, it is good to see you 

again. 

Dr. CRAWFORD. Thank you, sir. 

Senator LEAHY. I have always enjoyed working with you. 

In your written testimony, you raise concerns about being able 

to assess the relative sameness of generic alternatives derived from 

biological sources because of the complexity of protein structures. 

But then you state, ‘‘However, the science of characterization has 

progressed to the point where it is becoming possible to make such 

assessments for some products, and we expect that science will continue to progress.’’ Some of the European and Asian countries 

would say they are ahead of the U.S. regarding developing an accelerated process to approve these generic biologics. 

Are you considering recommending to OMB any legislative proposals for Congress to review to take advantage of the technological 

advances, those that might allow scientists to make accurate sameness evaluations? 

Dr. CRAWFORD. We are not at this time proposing legislation. As 

I mentioned, we are going to have this scientific workshop in conjunction with the Drug Information Association. At the conclusion 

of that, we will weigh what we have found out and determine 

which fork in the road to take. But at this point, we are not prepared to say whether or not we would— 

Senator LEAHY. Well, after that, could you let Chairman Hatch 

and myself know where you are going with it? It would be nice to 

have us all in the same hymn book, the Congress and the administration. 

Dr. CRAWFORD. Absolutely. 

Senator LEAHY. At some point, there is going to be required some 

legislation. For example, David Beier’s testimony raises some concerns about protecting the confidentiality of proprietary business 

data and trade secret information. He points out that the FDA recently noted that data required for the approval of any new product 

must be in the public domain. 

11

How do you handle trade secrets and proprietary information? I 

mean, you have to do your job, but the companies have to be assured, if they are spending millions of dollars on something, that 

their confidential information is kept confidential. How do you do 

that balance? 

Dr. CRAWFORD. I am going to ask Dan to comment on that, but 

before he does, ever since I was first in the FDA, in 1975, as you 

know, we have had great difficulties as the science changes, and so 

forth, in maintaining the confidentiality. But FDA has always had 

as a top priority the maintenance of trade secret information, and 

I think our record is quite good on that. 

Dan? 

Mr. TROY. I want to pick up on what Dr. Crawford said. Congress 

has decreed that trade secret and confidential commercial information is not disclosable by us. Indeed, it is a crime to disclose trade 

secret information under an act of Congress. 

I think as a result of that, one of the most salutary aspects of 

FDA’s culture is the care that people at FDA take with the very 

valuable business information that is entrusted to us. I think people really have an appreciation about how valuable it is. I am not 

saying there are never any missteps, but by and large there is a 

really good culture there of protecting that confidential commercial 

and trade secret information. 

The upside of that, of course, is that companies develop that information and can submit it to us with a fair degree of confidence 

that we are going to preserve it. Of course, as comes up in, for example, the whole debate about clinical trials, at times there are 

profound interests on the part of people in the patient community, 

in the medical community and in the scientific community who 

want access to that information. 

There is no doubt that that is a tension that we have to navigate, 

and I think that it is a tension that comes up in this context as 

well. On the one hand, if we don’t preserve this intellectual property, then people aren’t going to do the work to develop the new 

products. On the other hand, if we give perpetual protection to the 

intellectual property, then you will never have follow-on proteins or 

generic biologics. 

The brilliance of Hatch-Waxman is that it struck a balance between innovation and intellectual property protection and, at an 

appropriate time, a pathway for allowing products to come to market that are less expensive and more affordable and more available. 

So it is precisely that balance between innovation, which in this industry primarily manifests itself as intellectual property protection, 

and affordability that we are going to strive for, and we are going 

to work with Congress to strive for because I think there is pretty 

broad agreement that we are not going to be able to do this alone. 

Senator LEAHY [PRESIDING.] Thank you. Senator Hatch had to 

leave for a vote—he is coming right back—in another committee. 

I have to leave for a similar thing. You are both aware of how they 

usually try to have us on 12 different things at once, especially as 

we come close to a time as we are when there is going to be a 

break. 

So I am going to turn it over to Senator Durbin. It is all yours. 

Wreak all the havoc you want. 

12

[Laughter.] 

Senator DURBIN. Be careful what you wish for. 

Let me thank the witnesses for being here, and especially thank 

the FDA as an agency. In the time I have served on Capitol Hill, 

I have had a good working relationship on the Appropriations Committee with the FDA. 

Dr. Crawford, I thank you. 

Dr. CRAWFORD. Thank you, sir. 

Senator DURBIN. Mr. Troy, we don’t have a long friendship or relationship, but I am glad that you are here today and I thank you 

for your testimony. 

Let me try to explore an element here that I think needs to be 

discussed, and that is the market dynamic—and I think, Mr. Troy, 

you alluded to it—to protect the intellectual property of the company that discovers the chemical drug or the biologic drug, but only 

to a certain point at which we decide that their vested interest in 

that property becomes a public interest. 

We moved to Hatch-Waxman in 1984 with the belief that generic 

drugs are of public value because they save consumers money. You 

referred to the brilliance of Senator Hatch and I think he caught 

that as he was leaving the room, and I hope he did, and I want 

to give credit to both him and Congressman Waxman. 

But it is also true from your testimony, Dr. Crawford, that this 

was not an altogether smooth transition. There was some resistance from some pharmaceutical companies under Hatch-Waxman 

which led to the 2003 directive from the FDA concerning how long 

you could test the movement from brand name to generic, and that 

had become abusive; the conduct of the industry had become abusive. 

So address for me, if you will, for a moment the market dynamic 

when it comes to this issue. Are we not dealing with the same 

thing that the original company that has developed the protein or 

the biologic has a market interest in maintaining exclusivity in 

terms of production as long as possible because it is a profitable 

thing, and that we understand that at some point it may move to 

a generic or follow-on at lower cost? 

You have addressed, or at least alluded to the scientific challenge 

of producing the follow-on in a product that is different from some 

chemical drugs. But speak to, as well, about the market aspect of 

this. What kind of resistance is the FDA running into from those 

who have patent on the original biologic and the profitability of 

that medicine who believe that moving to the follow-on is going to 

end their profitability. Is there a resistance there that is part of 

this equation? 

Dr. CRAWFORD. Well, there is a great deal of interest in what we 

are doing here, it is fair to say. But what we have heard from the 

industry and the relevant trade associations is that I think there 

is a willingness to help FDA define through appropriate intercourse 

what it is that we need to do in order to ascertain that there is 

sufficient sameness between the pioneer product and the generic 

product to allow the process to move in a fair and equitable manner. 

We are going to need cooperation from industry, but also from 

manufacturing experts, the academic community, chemical and 

13

medical community, and so forth. So we have got to start this dialogue and I don’t really know where it is going to end up, but we 

are going to open up with this scientific workshop and then that 

is going to lead us into other directions. 

At the same time, we are going to have a separate consideration 

of the legal and regulatory aspects, but I think we have got to get 

the science first. So to answer your question, I wouldn’t call it resistance, but there is a great deal of interest in what we are doing 

and I think the public, in general, wants to be part of the process 

and I think that is a good sign. 

Senator DURBIN. How important is the cooperation of the brand 

name biologic manufacturer in developing the science and developing the process that leads to the follow-on biologic? 

Dr. CRAWFORD. Well, I am going to ask Dan, if I may, to respond 

to that. But, obviously, the attitude of the industry both in the pioneer companies and also those that are seeking to get a generic 

status—there is a tension there, and there also is an interchange 

which sometimes is dictated by the courts, as you know, that is 

very important to the process. 

Dan has had a great deal of experience over the last 3 years 

dealing both in courtroom situations and also in the adjudication 

of some of these disputes. He is an expert in this area of the law, 

so I would like to ask him to comment. 

Mr. TROY. Thank you. I think it is actually a bit of a mistake to 

suggest that the innovator industry, at least from what I have read 

and what I have heard, is united on this issue. I think there are 

different camps that people fall into. Different companies are looking at different positions, and so I don’t think what we are seeing 

is some uniform innovator brand company resistance fighting this 

issue tooth and nail. I think there is a recognition that sooner or 

later the time is going to come. A lot of it will depend, of course, 

on the science. 

When you say we need the cooperation ultimately—of course, you 

can pass legislation with or without somebody’s cooperation. Normally, you get someone’s cooperation to one extent or another. Ultimately, we do administer Hatch-Waxman, one might say, with the 

cooperation of the brand industry. They give us the data to approve 

their product. Then we can, and do, under Hatch-Waxman rely on 

that data in approving an ANDA. 

They don’t play any role in that process at that point. On occasion, they might raise scientific or legal objections to what we are 

doing. We are pretty good, I think, at separating out the wheat 

from the chaff and recognizing when challenges are being raised 

that are frivolous or challenges that are raised that are real and 

substantial that we need to deal with. 

So I think that, as Dr. Crawford reflected, we are still at a very 

nascent stage. We are exploring. I think people are figuring out 

where they are. There is still a lot of public process to undergo, and 

a lot of scientific and legal and regulatory exploration. 

Senator DURBIN. If I could ask one last question, Mr. Chairman, 

this is a question which relates to your agency, Dr. Crawford, and 

it relates to this issue, certainly, but many others. 

Having watched your agency over 20 years and watched its budget, I continue to marvel at how much you get done for the amount 

14

of money that we send out to you, and how much we rely on you 

to get it done. The approvals, as you know better than most, involve virtually every aspect of human life. The FDA is in there and 

involved in it. 

So when we talk about this kind of undertaking which is clearly 

going to require some of the best and brightest, and talk about 

whether or not we can develop a scientific process and say with 

some certainty that there is a follow-on biologic that can be trusted 

and is at a lower cost, where do you stand in terms of resources, 

particularly in personnel and lab space and whatever is necessary, 

to meet this challenge and so many others that we throw your 

way? 

Senator Hatch and I were on the floor yesterday talking about 

another issue which we won’t go into here, but one of the elements 

of it was, well, the FDA needs more manpower, more people to get 

this job done. So in light of everything that Congress keeps heaping 

on your agency, FDA, including this, where are you? 

Dr. CRAWFORD. Thank you for that question. 

[Laughter.] 

Dr. CRAWFORD. It is certainly one that I can expand on as much 

as you like. 

Senator Hatch mentioned the White Oak campus, and the idea 

there is to get the expertise of FDA, at least on the medical products side, the three centers there, plus the support staff above, including me, located in the same place so that we can have a critical 

mass of scientists like oncologists, and in this case pharmacologists, 

people that work in biologics of all sorts. 

If you can get them working on the same campus instead of—

actually, we have about 38 different facilities. If you count the mail 

facilities, we have 55 in the Washington area, and it increases 

every year a great deal. That is the single greatest impediment to 

getting our job done. 

We have Committee meetings of very key people to review applications that involve 70-mile round trips for our scientists. They 

generally have to travel on Washington’s Beltway system, so you 

can imagine managing FDA, such I am charged to do, and what a 

great difficulty that is. 

Apart from that, there is good news. We are now up to the largest number of personnel that we have ever had in FDA, and the 

recent increase is due in large part to the Congress dealing with 

the bioterrorism problem and providing both funding and personnel 

to deal with that. So the big increase has been there and not in 

the medical product area. In other words, it has been in the field 

forces. 

But it has helped a great deal because in the late 1970’s we lost 

10 percent of our personnel and it has taken all this time to get 

them back up to that level, and we are now even past it. The other 

good news is that Congress has allowed incentive pay and locality 

pay, so that we are able to pay physicians, for example, and other 

health care professionals competitive salaries. They are low-end 

competitive, to be sure. I wouldn’t say that things are perfect there, 

but when we are about to lose someone to another company or even 

to another government or something like that, we are able, by agVerDate 0ct 09 2002 11:43 Oct 07, 2004 Jkt 096196 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96196.TXT SJUD4 PsN: CMORC
15

gressively extending the authorities vested in my office, to save a 

lot of these people. 

The turnover at FDA down through the years that I have been 

associated with it is—a healthy rate is estimated to be about 8 percent. You need some turnover, as you well know, but what I need 

to be very careful of is whether that turnover is happening in key 

pockets. I mean, if the agency level is 8 percent and then in key 

scientific areas you are losing 25 to 50 percent a year, then you 

still have got just a big a problem. So far, so good in that respect. 

In the two-and-a-half years I have been back at FDA basically 

being the chief management officer, we have stabilized that very, 

very well indeed. We do have a precarious level of budgeting. It is about $1.8 billion, and as you would know, we have got to make really good use 

of that. We have less and less discretionary funds and we can’t 

leave anything that we are charged with regulating high and dry. 

We have to retrain people, and also multiply-train them. 

One of the things that has helped under the Bioterrorism Act is 

that we are able to commission other agencies to do FDA’s work 

in key spots. In order to cover the border with products coming in, 

not just food, but drugs and other things, we have taken major advantage of that provision, which was a great boon to FDA, and we 

have now commissioned 7,500 Customs and Border Protection 

agents to do FDA-type work. We do that after training and we do 

that after staying in contact with them. 

Also, each year in the budget we try to plan for things like BSE, 

the cattle disease. And I would give my predecessors a lot of credit 

for asking for the funding that we needed in order to stay up to 

date on that and to prepare for the inevitability. 

I will stop there, but if you want more, you can get it. 

Senator DURBIN. Well, thank you. Mr. Chairman, I think we all 

understand that as important as these discussions are, the implementation of our good ideas depends on the professional men and 

women at the FDA who can get the job done. 

While you were out, we lavished praise upon you for your work 

with Congressman Waxman, and your staff will verify that what 

I say is true. 

Chairman HATCH. Well, that is unusual on this Committee. 

[Laughter.] 

Chairman HATCH. While I have you here, I want to take advantage of this for a minute because there are a couple of other questions that I have that I hope will amplify. 

I know you are going to be holding a public symposium on followon biologics. I would like more details on the guidance your agency 

will be issuing on follow-on biologics. First, and most important, 

when will this be issued? Secondly, what will be addressed in the 

guidance that you will issue? This is an important matter, I think, 

not just to me, but to many people, and I would be interested in 

your thoughts on that. 

Dr. CRAWFORD. Well, Senator Leahy while you were out also 

brought this subject up of wanting to know what we find in the scientific workshop. I think what would be appropriate, with your 

concurrence, would be, following the workshop, we should come 

down and brief you and your staff and the other members of the 

16

Committee, as appropriate and as they are interested, on what we 

do find and where we think it is going to lead us. 

Chairman HATCH. Do you know about when that would be? 

Dr. CRAWFORD. Well, we hope to have the workshop by the end 

of the summer. 

Mr. TROY. I think in the fall, early fall. 

Dr. CRAWFORD. Your concept of fall and mine are different, as a 

matter of fact, because you are an attorney. 

[Laughter.] 

Chairman HATCH. It is a disability, I have to admit. 

Dr. CRAWFORD. I am pressing, Senator, to have it done maybe 

the day after Labor Day or something that, and we will come and 

see you when that does happen. When we turn that into guidance 

will actually depend on what we find out through this fact-finding 

process. 

Again, we are pressing very hard to get something out, but I 

have to plead that we don’t know what we will find out in the scientific workshop and so I can’t project. We may find out—you 

know, we are open-minded about this—that the science is still lagging in terms of characterization of these products, and so we need 

to fund some research projects or something like that. So I have 

to answer it that way. 

Chairman HATCH. Well, we will be interested in what kind of 

policy you come out with in that. 

Dr. CRAWFORD. Thank you. 

Chairman HATCH. Let us know as soon as you can. 

Could you give us more details on major policy decisions that we 

would face in devising a system to regulate follow-on biologics? And 

then Senator Leahy mentioned trade secrets. Could you or Mr. 

Troy amplify on that and the other major issues that we will all 

be facing? 

Dr. CRAWFORD. Yes. I would like to ask Dan to handle that part. 

Chairman HATCH. Okay. 

Mr. TROY. I guess I am not quite sure I understand what the 

question is, to address what the trade secret issues are? 

Chairman HATCH. Yes. 

Mr. TROY. We talked about that a little bit while you were gone. 

Congress has prohibited us from revealing trade secrets, and we 

are very protective of trade secrets and confidential commercial information. 

That said, at a certain point information becomes sort of generally known, and generally known in the scientific community. 

Part of the challenge is figuring out at what point does information 

kind of cross over. Obviously, if there is literature about something, 

then that is easy. 

But I think it is fair to say that the agency has always been extremely protective of intellectual property. That is one of our key 

missions. It is a key part of our culture and the challenge in going 

forward, which you are well aware of because that is what you did 

in Hatch-Waxman, is to strike a balance between the intellectual 

property protections and making products accessible and affordable. 

Chairman HATCH. Well, one other thing. This Committee will be 

holding a reimportation hearing in the near future. I would like 

17

you to be ready to come to that. We are going to need your testimony on that. 

Dr. CRAWFORD. Well, we look forward to that. As you know, this 

has been something FDA has been heavily involved in for some 

time and we look forward to some reasonable solution to it. As you 

also know, our concern by statute and also by the thing that drives 

us to be public servants is the safety and effectiveness of these 

products. So we have concerns about that. We would be very 

pleased to share that with the Congress, this Committee and anyone else who is working in that particular area. 

Chairman HATCH. Well, thanks, Dr. Crawford. For the record, 

one of the questions that we may submit in writing—and I will 

keep the record open until the end of the day for any questions any 

member of the Committee has in writing—we would like you to not 

only comment on trade secrets, but also any other major factors 

that will be discussion points on how to regulate follow-on proteins, 

if you could do that for us. 

Dr. CRAWFORD. We will be happy to respond to the question in 

writing if we could. 

Chairman HATCH. If you could, I would appreciate it. 

Dr. CRAWFORD. Thank you. 

Chairman HATCH. We appreciate both of you being here. We 

think you are both great public servants and you have been doing 

tremendous work out there. I can’t wait until you not only have 

that central campus so that the administrators don’t have to travel 

all over 38 different places all over this area, but you will have the 

highest and the best scientific instrumentation and facilities to 

work with, which is something that we owe to you and that you 

need to have done. So I hope you will keep the pressure on Congress to finish the White Oak campus. 

Dr. CRAWFORD. Thank you for all your support, sir. 

Chairman HATCH. Thank you. It is good to have both of you here. 

[The prepared statement of Dr. Crawford appears as a submission for the record.] 

Chairman HATCH. At this time, I would like to introduce our second panel. First, we will have Mr. Bill Schultz, who is testifying 

on behalf of the Generic Pharmaceutical Association. Mr. Schultz 

is a partner with Zuckerman Spaeder, who practices in food and 

drug law, complex civil litigation, products liability and appellate 

litigation. Mr. Schultz also was the Food and Drug Administration’s Deputy Commissioner for Policy and was responsible for 

overseeing the development of all FDA policies and regulations and 

FDA legislation. 

Most of us remember Bill when he was the FDA counsel to the 

former Chairman of the Health and Environment Subcommittee of 

the House Energy and Commerce Committee. While working for 

Congressman Waxman, he did assist greatly in the development of 

food and drug and other health care legislation. 

I have great respect for you, Bill, and we are glad to have you 

here and welcome you here. 

Second, we will have David Beier. 

David, we are glad to see you again and glad to have you helping 

us on this Committee. 

18

David is the Senior Vice President of Global Governmental Affairs for Amgen. Mr. Beier was former Vice President Gore’s chief 

domestic policy adviser, and prior to that position he was Vice 

President of Government Affairs and chief lobbyist for the biotech 

company Genentech, where he developed expertise in intellectual 

property, taxation, health care and other issues. Mr. Beier also 

worked for the House Judiciary Committee under former Congressman Pete Kastenmeier, of Wisconsin. 

We are delighted to have you here and I have appreciated your 

advice through the years. 

Our next witness is Dr. Carol Ben-Maimon. She is the President 

and Chief Operating Officer of Barr Research. Dr. Ben-Maimon is 

responsible for all aspects of Barr’s proprietary product research 

and development activities. She is also responsible for managing 

the company’s expansion into biologics. 

Prior to joining Barr in 2001, Dr. Ben-Maimon served as Senior 

Vice President for Science and Public Policy-North America for 

Teva Pharmaceuticals USA, where she coordinated Teva’s U.S. and 

Canadian research and development efforts, product selection and 

global integration. Dr. Ben-Maimon joined Lemon, owned by Teva, 

in 1993 and served as Vice President of Medical and Regulatory Affairs from 1991 until 1993. Dr. Ben-Maimon was Director of Clinical Pharmacology with Wyeth-Ayerst Research. 

So we are grateful to have you take the time to be with us as 

well. 

Our final witness on this panel is Dr. Bill Hancock. Dr. Hancock 

is Bradstreet Chair in Bioanalytical Chemistry, Barnett Institute 

and Department of Chemistry and Chemical Biology, of Northeastern University in Boston, Massachusetts. Prior to joining 

Northeastern University, Dr. Hancock was the editor-in-chief for 

the Journal of Proteomic Research of the American Chemical Society. He was also Director of Analytical Chemistry at Genentech 

and a visiting scientist at the FDA in the mid-1980’s. 

Dr. Hancock has received numerous awards and honors, including the American Chemical Society Award in Separation Science, 

in 2003, and the Martin Gold Medal in Separation Science in the 

year 2000. Dr. Hancock has contributed to numerous industry publications and organizations. 

The good news is this hearing is a unique opportunity to see a 

former Gore domestic policy adviser debate a former Nader disciple. The bad news is that our topic is so esoteric that only a handful of people listening will have any idea what they are talking 

about. 

[Laughter.] 

Chairman HATCH. Of course, that is not unusual for those two 

candidates anyway, you know. 

[Laughter.] 

Chairman HATCH. I am only kidding. Seriously, I look forward to 

hearing all of the witnesses’ testimony today and we are very 

grateful that you have taken time to come and help us to understand these things better on the Committee. This is an area where 

we all need to work together in the best interests of our people and 

of people throughout the world because if we are successful in this 

19

area, we may very well be able to transcend anything we have been 

able to do up until now. 

So we will start with you, Mr. Schultz. We will go to Mr. Beier, 

then Dr. Ben-Maimon, and then finally wind up with Dr. Hancock. 

STATEMENT OF WILLIAM B. SCHULTZ, ZUCKERMAN SPAEDER 

LLP, ON BEHALF OF THE GENERIC PHARMACEUTICAL ASSOCIATION, WASHINGTON, D.C. 

Mr. SCHULTZ. Thank you very much, Chairman Hatch. I appreciate this opportunity to testify on behalf of the Generic Pharmaceutical Association, the trade association whose 120 members 

produce more than 90 percent of all generic drugs in the United 

States. We owe our existence to you and to the Hatch-Waxman Act 

which was passed 20 years ago and which has been such a tremendous success. 

In 1984, we were at a crossroads. The brand industry was flourishing, and yet FDA had no regulatory pathway and no system 

which provided for generic versions of most of these brand products. So even after their patents expired, brand companies continued to sell their products at monopoly prices because they had monopolies. Congress responded and enacted the very successful 

Hatch-Waxman Act. 

Today, we are at a similar crossroads, Mr. Chairman, only this 

time it is for what we call biopharmaceuticals, as opposed to the 

traditional pharmaceuticals. As you said in your opening statement, biotechnology products account for something like $33 billion 

in pharmaceutical sales, and the sales are growing. Many of the 

large-selling biotech drugs have come off patent already or they 

will soon. More important, in contrast to the traditional drugs, 

these have exceedingly high costs, in the thousands of dollars per 

patient per year. So the potential savings and the stakes for the 

health care system are enormous. 

It is also significant that other countries are actively implementing such a program, including countries in the EU, Asia and 

Latin America. In fact, the EU issued guidance 3 years ago to assist the industry in bringing generic biopharmaceuticals to the 

market. As the world leader in pharmaceutical development, the 

U.S. should take on a leadership role in the development of a viable framework for generic biopharmaceuticals. 

I now would like to address several specific questions. First of 

all, does the FDA have the legal authority to approve generic biopharmaceuticals? We believe the answer is clearly ‘‘yes’’. As explained in my testimony, the FDA can adjust data requirements for 

generic biopharmaceuticals. 

Second, if the FDA can act in this area, is there any need for 

Congress to do so? The answer here is ‘‘yes’’, as well. FDA, left to 

its own accord, could take years to resolve the questions of its legal 

authority and to promulgate regulations. And years of litigation 

will follow that, inevitably. Our health care system cannot afford 

to lose this precious time, especially given the fact that there are, 

as Senator Hatch said, already 150 biopharmaceutical products on 

the market, with more to come in future years. It is just like 1984, 

Mr. Chairman. Congress needs to step in. It is appropriate for it 

to do so. 

20

Third, should Congress wait for all the scientific issues to be resolved before it acts? This seems to be some of the band industry’s 

argument. The answer here is ‘‘no’’. As former commissioner Mark 

McClellan recognized this year—and this is a quote—‘‘We do believe that the science may be adequate now to proceed on several 

relatively simple biologics.’’ In other words, Mr. Chairman, the 

science is already there for some biologicals. 

In my written testimony, we have given examples of situations 

where FDA has already reduced data requirements for certain 

biotech products that match ones previously approved. It may be 

some time before we can do this for other products. Yet, Congress 

should give FDA the legal authority and the direction to solidify a 

generic biopharmaceutical approval program. 

For each product, it will be FDA, not Congress, that will be 

charged with determining what the approval criteria will be and 

what will be necessary to support a generic product. Simply put, 

sound science must drive the system, but there is no reason to wait 

to legislate in this critical field. 

There is one telling example which by itself rebuts the brand 

companies’ argument that interchangeability between the generic 

and the brand is not possible. GlaxoSmithKline sells a Hepatitis B 

vaccine called Energix-B that is made through biotechnology. 

Merck sells a similar product called Recombivax HB. The FDA-approved labeling for both products states that these vaccines are 

interchangeable with each other, and that either may be used to 

create the vaccination course initiated with the other. Importantly, 

FDA has allowed this interchangeability to be established without 

anything like a full set of data. 

The fourth question: Would it be unconstitutional for FDA to rely 

on the brand drug’s approval? Would it be a taking of property 

without just compensation? Don’t worry. I am not going to spend 

the time that is really needed to engage in a constitutional debate 

here, and the Association will be submitting shortly an analysis of 

this issue. 

But I believe that it is clear from the Supreme Court jurisprudence in this area that the Court has gone nowhere as far as is 

often claimed by the industry. Government agencies rely on information submitted by companies and permit other companies to rely 

on agency action based on this information all the time. 

FDA, for example, regulates food additives by regulation. After a 

company submits its data, FDA issues a regulation, and the next 

company can rely on that regulation to get its approval. Of course, 

it has to wait for patents to expire and other intellectual property 

protection, but it can rely on the approval. It is not taking the data; 

it is relying on the approval. 

We have a similar system for over-the-counter drugs. We have a 

similar system for medical devices. The first company gets its approval. If the second company’s product is substantially equivalent, 

it can get its approval as well. These systems have been in place 

for many, many years and no one has ever argued there is an unconstitutional taking. 

Fifth, what should be the regulatory system that permits FDA to 

approve generic biopharmaceuticals? What should such a system 

look like? There are several important parameters. First, the sysVerDate 0ct 09 2002 11:43 Oct 07, 2004 Jkt 096196 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96196.TXT SJUD4 PsN: CMORC
21

tem needs to allow FDA the flexibility to tailor pre-clinical and 

clinical data requirements for biopharmaceutical products. The 

complexity of these products varies along a continuum. Some are 

very close in complexity to chemical drugs and some are much, 

much more complex. 

FDA should have the authority to establish the appropriate requirements based on a scientific risk/benefit approach. Congress 

needs to, however, require FDA to impose only those regulatory requirements that are necessary to ensure safety and efficacy. We 

faced this issue in 1984. There was a lot of concern that FDA 

would over-regulate. Congress was very careful in the statute and 

was very successful in ensuring that didn’t happen. This is something to keep in mind here, but we want full regulation to ensure 

safety and efficacy. 

We urge Congress to direct FDA to be very active in advising generic companies about how to comply with study design, data requirements and other issues. And we urge Congress, once it enacts 

legislation—and I believe it is inevitable that Congress will enact 

this legislation—to periodically monitor FDA and perhaps require 

FDA to issue regular reports back to Congress. 

In conclusion, Mr. Chairman, we ask for your help. As a result 

of the 1984 Hatch-Waxman Act, the generic drug industry now includes highly sophisticated and substantially capitalized companies 

that are ready to enter this market. A significant number of today’s 

biopharmaceuticals are ready for generic versions. An effective and 

efficient generic biopharmaceuticals program will result in tremendous untapped cost savings to this Nation’s health care system. 

In other words, today the case for legislative action is as strong 

as it was in 1984. The problem demands your attention. We thank 

you for this hearing and the generic industry stands ready to assist 

you in any way that we can. 

[The prepared statement of Mr. Schultz appears as a submission 

for the record.] 

Chairman HATCH. Well, thank you so much. We appreciate that 

excellent testimony. 

Mr. Beier, we will turn to you. We are glad to have you here. 

STATEMENT OF DAVID BEIER, SENIOR VICE PRESIDENT, 

GLOBAL GOVERNMENT AFFAIRS, AMGEN, INC., WASHINGTON, D.C. 

Mr. BEIER. Good morning, Chairman Hatch. On behalf of Amgen, 

the world’s largest biotechnology company, I come before you this 

morning with a simple message: Put patients first and sound policy 

will follow. We believe there may be a role for follow-on biologics 

in the marketplace if patient safety is assured and innovation is 

encouraged and protected. 

Everyday, over 80 Americans discover that they have leukemia. 

In the past hour, 150 Americans learned that they have diabetes. 

For each of these patients, there is only one issue before them: 

hope for access to safe, new cures and treatments. The best and 

brightest hope for breakthroughs for these patients comes from the 

United States biotechnology industry. 

Almost half of the new medicines approved by the FDA last year 

were biological products, and over 300 biotechnology products are 

22

currently available in Phase III trials. As Kenneth Shine, the head 

of the Institute of Medicine, said, the 20th century was the century 

of physics and astronomy. The 21st century is going to be the century of biology and life sciences. 

Let me be perfectly clear. Biological products are not the same 

as drugs. As the picture on the chart demonstrates, they are very 

different—very, very different in terms of their size and complexity. 

Biological products are immensely more complicated to manufacture, and therefore to reproduce by another manufacturer. That is 

why there needs to be a unique model for the approval of followon biologics. 

My colleague, Bill Schultz, referred to 1984 and claimed that it 

was an analogous situation. In 1984, there were hundreds of profitable pharmaceutical companies, tens of thousands of drugs, and 

one-third of the leading 200 drugs were already subjected to generic competition. The FDA had previously issued a scientific regulation outlining the circumstances for the approval of a generic 

product. 

In 2004, there are 1,100 biotech companies. Only a handful of 

them make money. There are only 155 products on the market and 

there is no regulatory pathway, no scientific basis for the approval 

of follow-on products until and unless a process like the one Commissioner Crawford outlined takes place. 

As the FDA recognized this spring in its Critical Path Report 

which analyzed trends in drug innovation and development, there 

is a substantial risk that the promise of biological breakthroughs 

will not fully bear fruit in part because of increased complexity and 

expensive development. With these increased risks comes the need 

for strong incentives for innovation. 

Mr. Chairman, as the author of Hatch-Waxman and as a supporter of innovation through other mechanisms such as orphan 

drug and pediatric exclusivity, you know firsthand the power of 

strong but fair patents, data exclusivity and trade secrets to spur 

investment, innovation, and ultimately for breakthroughs for patients. As the Supreme Court said in the Benito vote case, the intellectual property system is a carefully crafted bargain, much like 

the one you crafted in 1984, Mr. Chairman. 

This morning, we start and end with patients. Patients benefit 

profoundly when there are balanced incentives to innovate. Patients are also benefitted when they know, after a complete public 

and science-based process, that medicines they take are completely 

safe and completely effective. 

Current law does not provide the FDA with authority to approve 

follow-on biologics. We welcome the invitation from this Committee 

to begin a dialogue about a regulatory pathway for follow-on biologics. We believe that Congress must protect innovation before the 

FDA proceeds with the first steps toward a rulemaking or even a 

public process leading to guidance on science issues. 

What do I mean by protection for innovation? In sum, it is the 

combination of patents, data exclusivity and trade secret protection. Billions of dollars of reasonable, investment-backed expectations rest on the maintenance of these rights. These rights benefit 

patients by promoting research and development for new breakthroughs. They protect the invention, usually in the form of a prodVerDate 0ct 09 2002 11:43 Oct 07, 2004 Jkt 096196 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96196.TXT SJUD4 PsN: CMORC
23

uct patent, or, often for biotech products, the process. They also 

protect the pre-clinical and clinical trial data created by an innovator at the cost of hundreds of millions of dollars. This data exclusivity is an integral component of innovation protection. Finally, 

the proprietary formulas, especially the detailed manufacturing 

specifications, are protected under Federal law as trade secrets. 

As an innovator, Amgen does not seek to extend our legal rights 

beyond the metes and bounds of existing innovator protections. On 

the other hand, we would be concerned if the FDA seeks to rely on 

our proprietary data to approve a follow-on product. 

To respond to Mr. Schultz’ comments, it is true that the FDA in 

other analogous regulatory systems relies on the approval of other 

products. But as he carefully noted, they do not rely on the underlying data of the innovator. Our concern is about whether the agency would pierce our trade secrets and knowledge of our manufacturing process and use that information to approve a follow-on 

product. 

Finally, let me briefly address a topic not directly before the 

Committee; that is, what are the appropriate regulatory rules that 

would permit the approval of a follow-on product. 

In the main, we believe that pre-clinical data, clinical trials to 

demonstrate safety and efficacy and robust post-approval safety 

surveillance measures will be necessary. I stress these points because some of the other witnesses before you today indicate that 

they want to look to precedents in either China or Lithuania. Those 

systems do not have those elements and in some instances don’t 

protect the intellectual property of the innovators. 

While the exact standards for follow-on products will vary from 

product to product, there need to be some irreducible minimum 

data standards before an approval can be granted. Why do we take 

this view? First, we believe that significant or major manufacturing 

changes in biologic products made by anyone, including the 

innovators, need robust data submissions. 

Second, because biologics, especially complex proteins like the 

one outlined on the chart, are unique mixtures of active species, it 

is literally impossible for a second manufacturer to copy or duplicate the original product. Significant changes in cell lines and the 

manufacturing process to produce these products thus require a 

profound level of investigation, which can include pre-clinical and 

clinical data, before any reasonable regulatory authority can assess 

the safety and efficacy of these products. 

In closing, we welcome this invitation and express our continued 

interest in working with you, Mr. Chairman, and the Congress and 

the FDA to fashion reasonable rules for follow-on biologics, including the protection of innovator rights and measures to assure patient safety. 

Thank you. 

[The prepared statement of Mr. Beier appears as a submission 

for the record.] 

Chairman HATCH. Well, thank you so much. 

Dr. Ben-Maimon, we will take your testimony. 

24

STATEMENT OF CAROLE BEN-MAIMON, M.D., PRESIDENT AND 

CHIEF OPERATING OFFICER, BARR RESEARCH, INC., BALA 

CYNWYD, PENNSYLVANIA 

Dr. BEN-MAIMON. Thank you for inviting me here today. My experience as a physician and in both generic and propriety drug development provides me, I think, a unique perspective on the pharmaceutical industry. It really is this perspective that truly appreciates the value and contributions of the Hatch-Waxman Act. It 

also provides a perspective that makes me an advocate for a legislative process permitting the timely and efficient introduction of 

more affordable generic versions of biotech drugs. 

The issues before this Committee today are not unlike those 20 

years ago, when Congress created a legislative pathway for efficient 

and timely approval of generic drugs. Indeed, many of the arguments opposing Hatch-Waxman are being made and will continue 

to be made during this debate, namely the generic companies lack 

the scientific sophistication to operate in this complex arena, that 

it is impossible to adequately characterize the innovator products, 

and that the safety and efficacy of generic biotech products cannot 

be assured. I would like to assure you that this is not the case. 

Today, I would like to make three points. First, America is at 

risk of losing its leadership position in biopharmaceuticals. Second, 

the science exists to support an abbreviated approval process. And, 

third, the economics for generic biopharmaceuticals are compelling, 

and without them consumers will lose billions in savings while citizens of other countries realize the benefits of competition. 

To say that generic biotech products cannot be made flies in the 

face of the facts. The truth is it is already being done in other parts 

of the world. Biogenerics are being developed, produced and sold in 

countries such as Poland, China and Lithuania. The loss of a leadership position threatens that other countries will be dictating 

standards for regulatory approval and the quality of the products 

that ultimately end up in the United States. In addition, American 

scientists will lose the opportunity for the high-quality jobs that a 

robust American generic biopharmaceutical industry could bring to 

the United States. 

The marketing of generic biotech products in other countries 

clearly demonstrates that products are comparable and that safety 

is not an issue. The exposure of thousands of patients without untoward effects demonstrates that these products are effective and 

safe. There are also a number of biotech products that already 

multi-source in the United States. 

Insulin and human growth hormones are good examples. Each of 

these products required full development programs. A generic biopharmaceutical approval process must not require generics to recreate unnecessary clinical and pre-clinical data. The argument is 

made that biotech drugs are so complex that they cannot be characterized. This ignores the fact that advances over the past 20 years 

in analytical methods and validation techniques have allowed companies to characterize their biological drug products such that the 

impact of changes in processes and cell lines can be evaluated, and 

biologic drug products can be kept constant. The fact is that generic companies are no less capable than brand companies of applyVerDate 0ct 09 2002 11:43 Oct 07, 2004 Jkt 096196 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96196.TXT SJUD4 PsN: CMORC
25

ing state-of-the-art science in manufacturing and product development. 

The argument is made that there is a magic process. This may 

have been true when manufacturing processes were not validated 

and analytical methods were not advanced enough to characterize 

the final product. This is no longer the case. If it were, many of 

the products made by the various biotech manufacturers would not 

be available today. The regulatory system allows for the flexibility 

needed to make the necessary changes to processes, and even cell 

lines, required that enables them to supply these important drug 

products. In reality, biotech firms routinely justify process and site 

changes. 

Finally, the need for generic versions of biopharmaceuticals is 

compelling. America’s pharmaceutical biotechnology industry is one 

of the most successful and fastest growing segments of the U.S. 

health care system. Ten years ago, revenues for this industry were 

approximately $8 billion. According to IMS, the pharmaceutical 

biotech industry enjoyed in 2003 a revenue growth in excess of 22 

percent, compared to 11 percent of the total market. By 2010, analysts estimate that biotechnology product sales will exceed $60 billion. 

Generic competition is essential to control costs and to continue 

to stimulate innovation. If Congress does not act now, Americans 

will continue to face escalating drug costs. We urge Congress to 

create legislation that will clearly define a pathway that enables 

FDA to review and approve generic biopharmaceutical products in 

a timely manner. We urge Congress to ensure that requests for 

FDA approval are based on science and FDA does not place requirements on generic companies to re-create already established 

science, thus resulting in significantly increased expense and limited access. 

In summary, we recognize the investment made by the biotech 

industry and the need for them to recoup their investment. But as 

has been proven under the Hatch-Waxman Act, generic competition 

fuels future innovation. Now is the time to provide the balance of 

competition to keep America’s biotech innovators strong and growing. 

Thank you. 

[The prepared statement of Dr. Ben-Maimon appears as a submission for the record.] 

Chairman HATCH. Thank you, Doctor. We appreciate it. 

Dr. Hancock, we will take your testimony now. 

STATEMENT OF WILLIAM HANCOCK, M.D., BRADSTREET 

CHAIR OF BIOANALYTICAL CHEMISTRY, NORTHEASTERN 

UNIVERSITY, BOSTON, MASSACHUSETTS 

Dr. HANCOCK. Chairman Hatch, I would like to thank you very 

much for the opportunity to appear here and to discuss these very 

interesting and challenging scientific issues. 

At the onset, I would also like to apologize that with the short 

notice I had and with the complexity of the issues, I did not submit 

full testimony. But I am willing to update that after the hearing, 

if that should prove helpful. 

Chairman HATCH. We will be happy to have you do that. 

26

Dr. HANCOCK. So, now, when you introduced me, you went 

through some of my career. I think I have been fortunate that I 

have been able to experience academia and the biotechnology industry in the early days, and then the instrument companies Hewlett-Packard and ThermoElectron, because I was interested in devising new analytical instrumentation. Now, I have closed the circle and I am back in academia. So I have really seen the issue from 

all sides, as it were. 

In this situation, I am well aware that discussing the technology 

can become very eye-glazing. So rather than descend into the detail, what I would like to do is just to go through some of the issues 

and experiences that can illustrate the complexity of biological 

drugs and the follow-on products. 

I was actually interested to note that one of my colleagues here 

used aspirin as an example of a small molecule. I actually have 

chosen that, too, perhaps subconsciously with the thought that the 

complexity of this issue would leave us all with a headache. But 

we will see what happens. 

If we compare aspirin with, say, insulin, the smallest of proteins, 

we see with insulin that it is a much more complex molecule and 

a change in a single amino acid can result in diabetes. So very subtle changes can have profound medical effects, and this is true 

much more so as we go to even more complex proteins. Also, we 

know that certain proteins are species-specific, again showing that 

one amino acid can make a total difference in the activity of the 

protein. 

Then I mention the composition, that biologics can be composed 

of millions of atoms versus, say, 60 or 100. When I was at 

Genentech, we characterized Activase and we showed that Activase 

contained 300,000 different molecular forms. So although Activase 

was pure, what we were faced with was producing Activase as a 

constant or consistent mixture that had desirable and effective 

properties in the patient, but it was a very complex mixture. And 

that was produced in mammalian cells. 

If we move on to manufacturing and product quality, obviously 

biotechnology is different. Rather than doing a chemical synthesis, 

we will take typically an insertion of DNA into bacterial or mammalian cells, and that is our manufacturing process. 

Now, at Genentech we were proud that we took growth hormone 

and we forced E. coli to produce 25 percent of its protein as growth 

hormone. One-quarter of the cell was growth hormone. The bacteria was unhappy with that situation. It fought back. It would get 

rid of the excess genes, it would mutate and would try and lower 

the level of growth hormone expressed by reducing the number of 

plasmid copies. So nature does fight back, and that is true for all 

these engineered cells. So it requires the manufacturer to be on top 

of what is going on in the test tube or fermenter, as it were. 

So I think as a general comment here, what we rely on is that 

the manufacturer puts in a lot of very good-quality science and 

process, and then, of course, the FDA very well regulates to check 

that the company is really controlling all of these things. 

In the area of quality and good manufacturing practice, as an example, here I would like to note, of course, that blood is a biologic. 

So while we don’t use blood as a raw material, many of the raw 

27

materials to make the cell grow well are from a complex source. So 

there are instances of contamination. The BSE scare, mad cow disease—they remind us, then, that a natural source is not necessarily 

safe. 

Unfortunately, we continue to discover things. We may discover 

new viruses, so that a raw material that we think is safe today 

may not be in the future. So, again, we need good science and good, 

I think, regulatory interactions to consistently stay on top of 

things. 

I think we are looking at manufacturing in an international perspective. So, for example, a drug may be manufactured in Europe, 

and we notice that water, for example, in Europe is different from 

here. So I could go on with these different things, but I think the 

issue is that the process is very important here. We must regulate 

the process. We cannot just regulate through final product testing. 

I also note that product variance can be recognized by the immune system in the body. So, for example, a diabetic may have 

some function of the pancreas. Although they have some function, 

they get a boost from insulin. If we have product variance, the immune system can produce antibodies to insulin and destroy the remaining pancreatic functionality. So we have actually made the patient worse rather than better. And, of course, you can have other 

situations where there is immune disease. 

In conclusion, I would like to note, that I think there are major 

unresolved scientific hurdles, presently and in the near future, that 

are going to require very close cooperation between the manufacturers and the regulatory authorities. We are going to need animal 

testing and clinical trials so that at the end of the day we don’t get 

to the situation where there is a surprise in the market. 

I think ultimately if we don’t do our job well—that is, in the analytical production and the testing—it is the patient population that 

will be the final tester and will pick up the side effects when the 

product is marketed. So I encourage the Committee to consider this 

interaction between the FDA and the manufacturers. Currently, we 

have a very strong process with full testing for new drug approvals. 

So I think as we move forward, it is important that this is not diluted, and that the science and regulation continues to be very 

strong. 

Thank you. 

[The prepared statement of Dr. Hancock appears as a submission 

for the record.] 

Chairman HATCH. Well, thank you. I thank all of you for your 

testimony here today. 

Let me start with you, Dr. Ben-Maimon. On average, how much 

will consumers save in the cost of pharmaceuticals by the presence 

or generic biologics? 

Dr. BEN-MAIMON. I think as stated earlier, it is difficult to quantify and I think it was a very good point that was made by Dan 

Troy that really it depends on how many companies can enter the 

marketplace. 

I think what is significant is when you look at the generic drug 

process, the savings are really reaped in two very specific areas; 

first, in the area of R&D, where the pathway is abbreviated enough 

28

that the investment is more limited, and obviously then what needs 

to be charged at the other end can be substantially decreased. 

I think the second is in the sales force. Generic companies sell 

essentially to pharmacies and wholesalers, whereas the brand industry promotes their products to doctors who are all over the 

country. Today, there are really a limited number of chain drug 

stores and wholesalers. So whereas a generic company can have a 

sales force of maybe ten sales reps, a brand company can have 

thousands of sales reps visiting doctors. That translates ultimately 

into cost savings because obviously the cost of promoting the products is less. 

So I think that as the process is constructed, the savings are substantial. Even though the investment will probably be greater initially for generic companies to get into the biotechnology area, the 

savings will be substantial and people have estimated that the savings will be at least 50 percent. But, again, I think that depends 

a lot on how many other companies are out there. 

I would also say, Senator Hatch, that early on it may be more 

expensive than as we get through the process and the systems are 

in place. Finally, I think it is important to note that even today 

Barr, for instance, is developing a vaccine for the Department of 

Defense. So some of the processes are already going to be in place 

at certain companies, and that should provide a saving to some extent as well. 

Chairman HATCH. Well, you mentioned that under the current 

system innovator biotech companies may make changes to the 

manufacturing process of a biologic and establish safety and effectiveness for efficacy without conducting full-scale clinical trials by 

using what I think you referred to as a comparability protocol. 

You suggested that manufacturing generic companies could use 

a similar process, namely the use of surrogate markers, under the 

comparability protocol to establish the safety and effectiveness of 

generic biologics. However, when an innovator company makes 

changes to the manufacturing process, they also have access to the 

original cell chain. Companies manufacturing generic biologics, on 

the other hand, do not, which seems to me a problem. 

Given that the production of biologics is dependent on a number 

of variables, including the manufacturing process and the host cell 

chain, how could the producer of generic biologic ensure that the 

product is safe and effective, given the number of variables that 

differ from the production of the original biologic, without conducting new clinical trials? 

Dr. BEN-MAIMON. I think it is an important point and I think it 

is essential to recognize that as a physician, safety and efficacy are 

critical. And I think the generic industry is just as committed to 

the safety and efficacy of its biotech products as it already is to its 

generic drug products. 

I also think we have to differentiate between post-approval 

changes and pre-approval changes. When you talk about prior to 

approval, I think the generic industry—and I will speak for Barr, 

not for the generic industry, but at least at Barr we recognize that 

there will be some clinical trials required. Clearly, this will vary 

depending on the complexity of the product. 

29

But what is submitted to the agency is a package of information 

and it should be reviewed and evaluated as a package. There will 

be multiple analytical methods, multiple assessments of the actual 

molecular structure and, again, comparability. And then with all 

likelihood, depending upon the product, there will need to be some 

clinical trials done, but I would venture to say that they could be 

done on surrogate markers such as hemoglobin, white blood cells, 

glucose, rather than actually trying to re-create the wheel and looking at long-term morbidity and mortality, as some of these other 

products were early in the development programs for the 

innovators. 

So I think what we are asking for is a process that could be put 

in place that would allow us to discuss the requirements with the 

agency on a product-by-product basis that would look at each product as a continuum, as exists with generic drugs today. I mean, it 

is a continuum from the very simple to the very complex in the 

drug area, as well as in the biotech area. Really, the differentiation 

shouldn’t be whether it is biotech product or a drug, but how complex that product is and what the requirements should be to ensure 

that it is safe and effective. 

Chairman HATCH. I notice Senator Schumer is here. I will finish 

this question with you and then I will turn to Senator Schumer, 

who would like to make a statement, and then I have questions for 

each of the rest of you as well. 

Dr. Ben-Maimon, you stated that you believe some products have 

been misclassified under the PHSA and that they should be rightly 

classified under the Food, Drug and Cosmetic Act, given that 351 

of the PHSA currently speaks to the approval of biologics. 

What type of products do you believe were misclassified under 

the PHSA, and also why do you believe that the Food, Drug and 

Cosmetic Act should govern the approval of biologics? 

Dr. BEN-MAIMON. I am not an attorney, so I will speak as a physician reading the language in the law, which may not be the appropriate way to do things, but that is only position I can come 

from. 

The broader of the two laws is the FD&C Act, and it is clear that 

at least for manufacturing requirements and GMPs and a lot of the 

manufacturing changes, and even now today with the merger of 

CBER and CDER, the FD&C is the broader of the acts and applies 

to—and I think it even was stated by the FDA this morning that 

biotech products actually qualify as drugs even though the counter 

may not be true. 

In addition to that, when you look at the PHSA Act, it is very 

clear from the language that they are talking about viruses, products that induce antitoxins, products that induce immunogenicity 

or allergens. And then there is this term ‘‘and analogous products.’’ 

Biotech drugs, at least the ones we are talking about today, are 

the products that are made through recombinant technologies, and 

those products really are not viruses. They are not antitoxins, they 

are not arsenic. They really don’t meet any of the very specific definitions listed in that definition in the legislation, and they have 

been sort of put there under analogous products. 

So I just question whether that was a convenient place to have 

put them rather than really where they belong, and whether they 

30

really belong in the drug arena because they really act and perform 

as drugs and that FD&C regulates them as well. 

Mr. BEIER. Mr. Chairman, can I comment on that question? 

Chairman HATCH. Sure. 

Mr. BEIER. I think the attempt to read the Public Health Service 

Act in that manner is frankly wrong. The FDA has construed the 

term ‘‘analogous’’ to include biotech products for more than 20 

years. And to suggest an abrupt change of this nature would likely 

be struck down by courts as not having gone through the appropriate process. I would be glad to submit something for the record 

on that question. 

Chairman HATCH. That would be fine. Thank you. I am going to 

turn to Senator Schumer for his statement and then I would like 

to get back to the final questions. 

Senator SCHUMER. I have questions, as well, Mr. Chairman, but 

I will defer those until after yours. 

Chairman HATCH. Okay. 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman, for holding this 

hearing on an issue that I care a great deal about, and many of 

us do, and that is affordable biologic medicines. As everyone knows, 

in 1984, Chairman Hatch, you authored a piece of legislation which 

has proven to be one of the most pro-consumer laws in our time. 

Hatch-Waxman helped millions of people save billions and billions 

of dollars on prescription drugs over the past two decades. And, of 

course, I have been actively involved in making it stronger. 

I believe that biologics are the next frontier in our desire to make 

generic drugs as widely available as possible, to make cheaper 

drugs as widely available as possible. In recent years, we have had 

lots of changes, and biologics are a $30 billion industry. They account now for 12 percent of the total of pharmaceuticals. And the 

industry is growing at 20 percent, so every year they increase their 

percentage of the drug market. This is where we should be placing 

our focus now. 

Products with $10 billion in sales are expected to come off patent 

in the next several years, and that presents a real opportunity. The 

bottom line is from the perspective of those of us who fought for 

improvements in the generic drug law, biologic medicines are no 

different. While the biotech industry benefitted from the patent 

restoration side of Hatch-Waxman, the law did not explicitly set up 

a fast-track generic approval system for all biologics at that time 

because the industry was so new. Well, it is no longer new. Patents 

have been extended and we ought to get to work on it. That is why 

I am so glad, Mr. Chairman, that you have held this hearing. 

Now, obviously, there are differences between chemical drugs 

and biologic drugs. Biologic drugs are extremely complex and expensive to produce. Patients who use them spend tens of thousands 

of dollars a year for a single treatment, with the most expensive 

therapy costing around $200,000. But they are critical in many instances. They are life-saving drugs treating diseases like cancer 

and diabetes and MS and rare diseases, and the technology holds 

31

the promise of finding cures for things like Alzheimer’s disease and 

Parkinson’s disease. 

But even more than in the chemical drug area, the exorbitant 

cost of the drugs often means that people can’t afford to take them. 

Though the world of biologic medicines is an extremely complex 

business, we have no choice but to seize this opportunity to do the 

right thing for consumers, to find a way using cutting-edge science 

to ensure that safe, affordable alternatives are brought to market 

as soon as possible. Of course, we have to find a way to do this 

without cutting innovators off at the knees. 

Companies are already marketing safe, effective and affordable 

biologics in Eastern Europe, Russia, Asia and Latin America. They 

are not yet available in the EU, which has a system of drug regulation similar to ours. But the EU has issued guidance on how biologics could be done. They issued that several years ago and they 

are well on their way to approving several follow-on biologic products. 

So, unfortunately, in this area America lags sadly behind many 

other countries. Surely, if the science is adequate to produce these 

products elsewhere, especially in Europe where the system of regulation, as I mentioned, is similar to ours, we can do it here. So we 

have got to get the process rolling. 

I was encouraged by what seemed to be an eagerness on the part 

of the FDA under Commissioner McClellan to issue a draft scientific guidance to begin to lay out what is known and what is not 

known about the science of producing affordable biologics. But, unfortunately, the process may be slowing. 

I had some questions for the FDA. I couldn’t be here. I had a conflict, but I would ask unanimous consent to submit them in writing 

and get them to answer them. 

Chairman HATCH. We have allowed the record to be open until 

the end of the day. 

Senator SCHUMER. So we hope the process is not slowing, but it 

seems it has in the FDA. Certainly, part of this process should be 

a vibrant public debate. But the FDA has done a whole lot of thinking on the science behind this and the agency should issue its guidance now so we can get going on the drugs we do know something 

about. 

With biologic drugs being extremely complex, it is my understanding that there is still a full spectrum of complexity among 

marketed products. There are some that are easier to do and some 

that are harder to do, and you don’t have to solve the most difficult 

problem before getting guidance on some of the easier problems. 

The FDA has said it has the authority to approve the follow-on 

products for those drugs that were originally approved under the 

Food, Drug and Cosmetic Act, and some of these drugs are less 

complicated on the spectrum. 

We may not be able to jump head-first into this with a one-sizefits-all system that works for every drug on the market, but we 

have got to begin somewhere and we have got to begin now, and 

I hope this hearing will prod the FDA to move forward more quickly. 

I thank you, Mr. Chairman, for holding the hearing. 

Chairman HATCH. Thank you, Senator. 

32

Mr. Schultz, in your testimony you refute many of the arguments 

made by the brand name companies that they have expressed in 

opposition to a system for the approval of follow-on biologics, such 

as that it would amount to a taking of their property without just 

compensation. You also state that you believe the FDA currently 

has the legal authority to approve generic biopharmaceuticals, and 

we all agree. This is one of the great strengths of this country, is 

the innovation in the health care industry. 

How would you envision maintaining incentives for innovation in 

the biotechnology industry? 

Mr. SCHULTZ. Well, I think the first step is to look at the incentives that are there, the patent system, and so forth. The products 

that are coming off patent, just roughly looking at it, have been on 

the market for 10, 12 or more years, and the question is: is there 

some problem in terms of their profitability? 

I think there is a very strong case that the incentives are already 

there and once the products have been on the market for the period 

of the patent life, when the patents expire, they ought to be available for generics. Obviously, the brands are free to make a case 

that there are inadequate incentives, but I don’t hear them making 

it. I don’t hear them making that case. 

Chairman HATCH. I will ask this series of questions to both you 

and Mr. Beier, if you would care to comment. 

Mr. BEIER. Mr. Chairman, the existence of incentives to support 

risky inventions is something that you know firsthand. You know 

that because you were the author of orphan drug exclusivity and, 

working with Senator DeWine, pediatric exclusivity. So the opportunity to use market forces to create cure capital—that is, investments in start-up biotech companies—is a profound one. 

The United States has 1,200 biotech companies. About 30 percent of those are publicly traded. But as I indicated before, an overwhelming majority, well over 90 percent of those companies, lose 

money every year. They make massive investments in R&D. The 

way in which their investments are protected is a combination of 

three things—patent protection, data exclusivity, and trade secret 

protection. Let me go through them in a series. 

First, with respect to patent protection, as Senator Schumer 

noted correctly, the biotechnology industry is covered in part by 

Hatch-Waxman, but it is not covered with respect to process patents. And as a result, none of the patent listing or the litigation 

protections and procedures that were offered by Senator Schumer 

and Senator McCain and others last year apply to the biotechnology industry. 

The second way in which the biotechnology industry has innovator rights is data exclusivity; that is, the rights they have in the 

case report forms and other clinical data. The question that is 

posed before this Committee and ultimately the whole Congress 

will be what are the rules with respect to that kind of data. 

And then the third kind of exclusivity is trade secret protection, 

usually contained in the CMC section of an application to the FDA; 

that is the cell lines, the master cell lines, the fermentation methods, all the process quality steps that are necessary for complex 

proteins. That third category of information is hugely important 

and a subject of a lot of investment by biotech companies. So when 

33

Mr. Schultz says it is fine when the patent expires that you can 

use all the data, I think that doesn’t answer the complete question. 

You have to look at the other components, both data exclusivity 

and trade secret protection. 

Let me also make one other point. I would like to submit for the 

record some rebuttal to Mr. Schultz’ comments about OTC and food 

additives, because I don’t think they are particularly apt in this 

case. 

Chairman HATCH. Without objection, we will take that in the 

record. 

Let me just ask both of you this question. The recent example 

of Pure Red Cell Aplasia, which is associated with the use of EPO, 

erythropoietin—is that the way you pronounce it? 

Mr. SCHULTZ. EPO is good enough for me. 

Chairman HATCH. EPO is good enough for me, too. 

This highlighted a number of antibody-mediated reactions associated with biopharmaceuticals. The cause for this serious side effect 

appears to be due to a subtle change that occurs during the manufacturing and reformulation process or in the handling and distribution process. It is now clear that nearly all biopharmaceuticals 

induce antibodies with the possibility, as mentioned by Dr. Hancock, of these serious immune reactions by two mechanisms—the 

classical reaction and the new mechanism of breaking immune tolerance. 

How does this risk attributed to a subtle change in the molecule 

due to a manufacturing or formulation change affect the issue of 

ensuring patient safety in the manufacture of generic biopharmaceuticals? 

Mr. BEIER. Mr. Chairman, I think the best place to start is we 

looked at the public domain literature on manufacturing changes. 

It is important to make a distinction between manufacturing 

changes made by a company that has access to the trade secrets 

and the manufacturing data; that is, an innovator company making 

changes to their own process is quite a different thing from a follow-on company who would be necessarily using a different cell 

line, different fermentation, a whole series of other things. 

If you look at the publicly available literature, the potential safety risks for patients include immune response that you have noted 

with respect to the Eprex situation in Europe, potential allergic reactions, differences in glycosylation—that is, the sugar residues 

around the products—and a decrease in potency. 

These changes can result from either changes in manufacturing 

sites or methods, changes in cell lines, changes in excipients, 

changes in storage or in transportation, or in scale-up differences 

between manufacturers. All of those things need to be taken into 

account because for complex proteins, the FDA is regulating not 

just the product, but the process of manufacture. 

So as the FDA proceeds with the science-based effort that they 

have got underway with DIA, they are going to be looking at manufacturing experts, academic experts, and we fully expect to cooperate completely with them, as we are with European regulators, in 

providing our best professional judgment about what is necessary 

to assure patient safety. 

34

Mr. SCHULTZ. Could I comment? The FDA is charged with regulating a wide range of very, very tricky products, and everyday it 

is making these important scientific decisions. And this is true for 

the first biological to come on the market just as it will be true 

when the second one and the generic one comes on the market. 

But this is why it is so important that in the legislation Congress 

give the FDA the flexibility to make the right scientific decision. 

And I think it is important, whether you are talking about the 

brand product or the generic. Dr. Ben-Maimon actually knows 

something about the science and she would like to comment on this 

as well. 

Chairman HATCH. Sure. 

Dr. BEN-MAIMON. I think in this situation it is exactly what I 

spoke about before. You have to separate post-approval changes 

from pre-approval changes. And in this situation, the changes that 

you are referring to occurred after approval and should have required additional work. They were also changes, as I understand 

it, in the formulation itself, with the deletion of what probably 

should have been considered a major component. 

Quite honestly, this whole issue of the process is essential from 

the standpoint of the biotech industry. But the generic industry 

and the drug industry are actually much more experienced and 

much more sensitive to changes in formulation that ultimately impact things like stability. So I think when you talk about biotech 

generics and you are talking about pre-approval issues, you will 

have clinical data in the application that will have been discussed 

and worked out with the agency to allow you to look at the safety 

and efficacy of the product at the time of approval. 

What occurs post-approval is dictated by all kinds of regulations 

with prior approval, and you have heard in some of the testimony 

that was written changes being affected and some others. But, 

clearly, prior to approval, whatever the development process is will 

be tested clinically in patients. So the agency will be basing its decision not on changes, but on the data contained in the application, 

which is dramatically distinct from the Eprex circumstances which 

happened post-approval. 

Chairman HATCH. Dr. Hancock. 

Dr. HANCOCK. I have a concern that this discussion makes it 

sound easier than it really is. The changes are so subtle that I 

think often, even within the company, one cannot quite understand 

what happened to the product when a particular resin or purification or whatever changed. So I just want to emphasize for the 

Committee that these changes are very subtle and very wide-reaching, and we need to be very careful as we move forward. 

Chairman HATCH. Thank you all. I appreciate you. I have a number of questions I am going to submit in writing because this is a 

complex area, and I would appreciate your sending back your answers as quickly as possible. My time is up. 

Senator Schumer, I have got to leave in about 5 minutes. 

Senator SCHUMER. I will be quick, Mr. Chairman. I would first 

ask unanimous consent to submit a whole lot of questions in writing. 

Chairman HATCH. Without objection. 

35

Senator SCHUMER. For Mr. Schultz, again, it is my understanding that the FDA had planned to issue draft guidance this 

summer laying out the scientific parameters relevant to the creation of follow-on biologics. Is that correct? 

Mr. SCHULTZ. It was widely anticipated. That was my understanding, too. 

Senator SCHUMER. Right, okay. Now, it seems this guidance is 

being delayed and they are having this public symposium first. At 

least it seems to me that the FDA has tremendous scientific expertise here. They have already said they have authority to approve 

follow-up products, at least for some of the drugs. 

Wouldn’t it make sense from your point of view and from the 

consumer’s point of view for the FDA to issue its guidance now so 

we can get going on products we know something about? 

Mr. SCHULTZ. Particularly since the guidance that it was going 

to issue was a draft for comment. That is, it was going to be its 

first cut at it and there would have been a public discussion anyway. Now, I gather that is all being pushed back for a symposium. 

Senator SCHUMER. The public discussion doesn’t have a root, a 

basis. It sort of floats out there in the ether, I guess. Do you have 

any idea why they delayed it? 

Mr. SCHULTZ. No, I don’t. 

Senator SCHUMER. Does anyone here? 

No, okay. 

Does anyone disagree that the FDA should move forward now? 

I am sure there would be some people maybe at the ends of the 

table. 

Dr. HANCOCK. I will take the bait, Senator. I do represent the 

coast; maybe it is the end of the table, too. I participated in the 

first consensus forum meeting the FDA held right at the beginning 

of biotechnology, which related to the approval of insulin. And I 

really think it is a very good process. It brought together all of the 

various biotech companies in the world at the time and international experts, and I think drove a consensus together. I really 

think that did speed up the FDA. 

I can understand your concern for not having further delay, but 

I think the best way to speed things up is to hold this meeting 

quickly and for the FDA then to pass its comments on to you. I 

would really support that process. 

Senator SCHUMER. But what would be wrong with doing it the 

inverse, as Mr. Schultz sort of alluded to—put out their guidance 

first, then have the big discussion, because they are going to have 

to have comments anyway? 

Mr. BEIER. Senator, I think the advantage to having a public 

forum before the issuance of a draft guidance is seen by the fact 

that the FDA frequently adopts that particular point of view. I 

would be glad to submit for the record the ten or more instances 

in which they have done this in the last 10 years. 

The most recent one was the issuance of a draft guidance on 

pharmacogenomics, an equally complicated scientific endeavor—the 

opportunity for targeted medicine like Gleevec and other things 

that we all celebrate everyday that bring cures to people with cancer. The development of this targeted therapy is of huge public 

health consequence. But before issuing the draft guidance, the FDA 

36

had several public forums, laid out all the appropriate scientific 

issues. As a result, when they finally came out with a document, 

it was more robust and there was a greater consensus. 

In the long run, consumers benefit by having confidence that the 

agency has engaged in a science-based, transparent public process, 

not just that several people in Rockville or elsewhere have thought 

about something and issued draft guidance. 

Senator SCHUMER. Mr. Beier, no one is disputing that. The question is whether they could have issued the guidance and then had 

some discussion based on it and then reacted to what the public 

had to say.

Mr. BEIER. The example, Senator, is if you look at what has happened in the European Union, the European Medicines Evaluation 

Agency came up with guidance in December. The agency is now 

struggling, because they did not have a public forum, did not bring 

in experts, about what exactly it means on a particular product 

basis. So an incomplete record can produce either unintended consequences or can place patients in a situation where they may lack 

confidence in the appropriate regulatory authority.

Senator SCHUMER. Mr. Schultz.

Mr. SCHULTZ. There is a famous quote from Samuel Jonson, 

‘‘nothing focuses the mind like a hanging.’’ Well, nothing focuses 

the FDA like a directive from Congress. This where we are in the 

early 1980’s. The FDA was talking about an ANDA program. It 

would have been many, many years before it got there if it weren’t 

for the 1984 Hatch-Waxman Act. This is where they were in the 

late 1980’s with regard to nutrition labeling. There again, Congress 

stepped in and it got done. I personally believe that this issue demands Congressional attention if your desire is to get it done.

Senator SCHUMER. I agree with you completely, Mr. Schultz and 

I am going to focus on this and push the FDA to move forward because I agree. Sometimes, not always—and who knows in this 

case—having all these forums without anything concrete just leads 

to more forums and takes too long a time. I don’t see the contradiction in having guidance and then having discussion and still solving the problems that Mr. Beier mentioned.

You can get the last word from my questions, Dr. Hancock, because I am always mindful of my Chairman’s schedule.

Chairman HATCH. He is never mindful of my schedule, never, not 

once in the whole time he has been on this Committee.

Senator SCHUMER. That is one of the nicest things he has said 

about me in quite a while.

[Laughter.]

Chairman HATCH. Actually, I have said one or two other nice 

things about you.

Senator SCHUMER. Yes, you have; yes, you have, Mr. Chairman.

Chairman HATCH. Actually, I appreciate my colleague. He is a 

very thoughtful, very aggressive, very hard-working colleague, and 

I appreciate him.

Senator SCHUMER. Dr. Hancock.

Dr. HANCOCK. I realize that I am between the Committee and 

lunch, so I would agree that Congress should really push all of us 

to be very vigorous in this area. I support that a hundred percent, 

37

but I would encourage you to give the FDA access to the international body of science. These are very difficult issues.

I am actually working with the Human Proteom Organization, 

and it is amazing when you have a group of international scientists 

together what they come up with. I think we would move faster by 

assisting the FDA with as much outside help as we can, and I 

think the academics and government scientists stand ready to do 

that.

Thank you for the last word.

Chairman HATCH. Well, thank you. Let me just say, Mr. Schultz, 

I agree with you. It is inevitable that there will be legislation with 

regard to follow-on biologics. It is my hope that this hearing today 

will be a help to build a solid foundation so that we can do the job 

here, and it will be wisely done, in developing that legislation. In 

that regard, I would ask each of you and others in the audience as 

well and those who watch this on television to give us the best 

ideas you can so that we can proceed and get this all done.

Finally, I just had one more question for you, Mr. Beier, that 

struck me as something I should ask before we finish, and this will 

be the last question. You stated in your submitted testimony that 

follow-on biologics cannot be considered therapeutically equivalent 

to the innovator product.

How do you reconcile that argument with the 1995 FDA decision 

or finding—I guess it was a finding regarding Avanex, which was 

a biogen product for the treatment of relapsing forms of multiple 

sclerosis, that two cell’s lines could be unique and yet comparable? 

This is the way I interpreted that.

Mr. BEIER. The testimony that I submitted indicates that we believe that follow-on products should not be therapeutically substitutable, which is you shouldn’t have a patient on one particular 

product and then switch it to a follow-on product because that may 

produce a different immune response. So that is the answer to your 

first question.

With respect to the specific case that you are talking about, it is 

a very highly unusual fact pattern involving an American company 

and a German company who collaborated who had a contract. Both 

companies had access to trade secret information and manufacturing data. The two companies then had a business disagreement 

and the submission of data from one of the dissatisfied parties did 

rely on the data from the other company, but there had been previous access to this information. So I think it is a relatively unique 

set of circumstances that led to that particular approval.

Chairman HATCH. Well, thank you. I appreciate your comments 

on that. We will submit some further questions in writing. I think 

this has been a very interesting hearing.

I am sorry, Dr. Hancock, that I ran out of time. I had some questions for you, as well, but I will submit them in writing and I know 

that you will more than adequately answer them.

We are very grateful to all of you. We have learned a lot here 

today, and we challenge all of you and others in the scientific community to help us with regard to what I propose will be follow-on 

legislation. Thanks so much.

With that, we will recess until further notice.

38

[Whereupon, at 12:23 p.m., the Committee was adjourned.]

[Questions and answers and submissions for the record follow.]

[Additional material is being retained in the Committee files.]

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