Antibiotics: FDA Needs to Do More to Ensure That Drug Labels Contain Up-to-Date Information
Released: 2012-01-31T00:00:00

Letter

Background

FDA’s mission is to protect the public health by ensuring the safety and effectiveness of human drugs marketed in the United States. The agency’s responsibilities begin years before a drug is marketed and continue after a drug’s approval.

FDA and the Drug Approval Process

FDA oversees the drug development process. Among other things, FDA reviews drug sponsors’ proposals for conducting clinical trials, assesses drug sponsors’ applications for the approval of new drugs, and publishes guidance for industry on various topics. Once drugs are marketed in the United States, FDA has the responsibility to continue to monitor their safety and efficacy and to enforce drug sponsors’ compliance with applicable laws and regulations. FDA also annually publishes a list of drugs approved for sale within the United States, the Approved Drug Products with Therapeutic Equivalence Evaluations, also known as the Orange Book. In addition, since February 2005, FDA has provided updates via the Electronic Orange Book on brand-name drug approvals the month they are approved and on generic drug approvals daily.

FDA’s Center for Drug Evaluation and Research is responsible for ensuring the safety and efficacy of drugs. Within this center, the Office of New Drugs is responsible for reviewing new drug applications (NDA), while the Office of Generic Drugs is responsible for reviewing applications for generic drugs, which are abbreviated new drug applications (ANDA).

NDAs and ANDAs must be submitted by sponsors and approved by FDA before a new brand-name or generic drug can be marketed in the United States. As part of the approval process, FDA reviews proposed labeling for both brand-name and generic drugs; a drug cannot be marketed without an FDA-approved label. Among other things, a drug’s label contains information for health care providers and specifically cites the conditions and populations the drug has been approved to treat, as well as effective doses of the drug. Sponsors of both new brand-name and generic drugs are required to submit annual reports to FDA that include, for example, updates about the safety and effectiveness of their drugs; these annual reports are one way FDA monitors the safety and efficacy of drugs once they are available for sale.

Manufacturers may submit an ANDA to FDA to seek approval to market a generic version of the drug after the period of exclusivity and any patents for a brand-name drug expire.

FDAAA Provisions Related to Antibiotic Effectiveness and Innovation

FDAAA contained three provisions related to antibiotic effectiveness and innovation, each of which required FDA to take certain actions. One provision required FDA to identify breakpoints “where such information is reasonably available,” to periodically update them, and to make these up- to-date breakpoints publicly available within 30 days of identifying or updating them.

A second provision extended the duration of market exclusivity from 3 years to 5 years for new drugs that meet certain detailed, scientific criteria. be for a new drug consisting of a single enantiomer of a previously approved racemic drug. The application for the drug must also be submitted for approval in a different therapeutic category than the previously approved drug and meet certain other requirements. FDAAA specified that FDA use the therapeutic categories established by the United States Pharmacopeia to determine whether an application has been submitted for a separate therapeutic category than the previously approved drug.categories developed by this organization that were in effect on the date of the enactment of FDAAA.

The provision applies to new drugs of any type that meet the criteria, not just antibiotics. Pub. L. No. 110-85, § 1113, 121 Stat. 823, 976-77 (2007). serious and life-threatening infectious diseases.to counter some of the business risks a drug sponsor must undertake when developing antibiotics. For example, the Orphan Drug Act provides incentives including a 7-year period of marketing exclusivity to sponsors of approved orphan drugs, a tax credit of 50 percent of the cost of conducting human clinical testing, research grants for clinical testing of new therapies to treat orphan diseases, and exemption from the fees that are typically charged when sponsors submit NDAs for FDA’s review. Sponsors may also be eligible for a faster review of their applications for market approval.

FDA’s and Drug Sponsors’ Responsibilities to Ensure Up-to-Date Breakpoints on Labels

Sponsors of all drugs are required to keep the information on their drug labels accurate. Unlike labels for most other types of drugs, labels for antibiotics contain breakpoints. These breakpoints may continue to change over time, and the sponsors of antibiotics are tasked with the additional responsibility of maintaining up-to-date breakpoints on labels. Although sponsors are required to maintain up-to-date breakpoints on their labels, FDA has acknowledged that many antibiotics are labeled with outdated breakpoints. Outdated breakpoints can result in health care providers unknowingly selecting ineffective treatments, which can also contribute to additional bacterial resistance to antibiotics.

Monitoring breakpoints on labels and keeping them up to date can be a challenging process. The most accurate way to monitor and determine if a breakpoint on a label is up to date is to conduct both clinical trials and laboratory studies, but these can be difficult and expensive and may not be appropriate in all circumstances. For example, clinical trials require the enrollment of large numbers of patients, which may be difficult to achieve, to ensure an understanding of a drug’s safety and effectiveness against specific bacteria. Enrollment may also be difficult for clinical trials involving antibiotic-resistant bacteria. Unlike clinical trials for a new cancer drug, for example, where researchers are able to target drugs to a patient population with a specific type of cancer, this may not necessarily be the case for antibacterial drugs. There are no rapid diagnostic tests available to help a researcher identify patients with antibiotic-resistant infections who would be eligible for such trials. Laboratory studies, such as susceptibility testing, can be less costly than clinical trials; however, they still require significant microbiology expertise. Susceptibility testing reveals an antibiotic’s breakpoint—that is, its ability to kill or inhibit the growth of a specific bacterial pathogen. As such, the results of such tests can provide a sponsor with some data to help update its antibiotic label with more accurate information. Guidelines for developing appropriate susceptibility tests are available from standards-setting organizations, such as the Clinical and Laboratory Standards Institute. Sponsors may obtain information from such organizations to help them conduct susceptibility tests for their antibiotics or otherwise determine if the breakpoints on their antibiotic labels are up to date. According to FDA officials, much of this information is available free online and at conferences.

When new information becomes available that may cause the label to become inaccurate, false, or misleading—such as information on increased bacterial resistance to antibiotics—drug sponsors are responsible for updating their drug labels. Label changes of this type require FDA’s approval. A sponsor must submit an application supplement to FDA with evidence to support the need for a label change. A sponsor’s responsibility for maintaining a drug’s label persists throughout the life cycle of the drug—that is, from the time the drug is first approved until FDA withdraws its approval of the drug. A drug is not considered withdrawn until FDA publishes a Federal Register notice officially announcing its withdrawal. A sponsor may also decide to discontinue manufacturing a drug without withdrawal. Sponsors that decide to discontinue marketing a drug are still responsible for maintaining accurate labels. Unlike a drug that is withdrawn, a discontinued drug for which approval has not been withdrawn is one that the sponsor has stopped marketing, but that it may resume marketing without obtaining permission to do so from FDA. Discontinued drugs are identified as such in the discontinued section of the Orange Book.

Federal regulations allow ANDA’s labels to differ from the label of the corresponding reference-listed drug in certain ways, such as manufacturer name or expiration date. See 21 C.F.R. § 314.94(a)(8)(iv) (2011). to-date breakpoints, into their generic drugs’ labels. A drug maintains its reference-listed drug designation until its approval is withdrawn or a finding is made by FDA that a discontinued reference-listed drug was In either withdrawn from the market for safety or effectiveness reasons.of these cases, FDA will designate a different drug as the reference-listed drug and publish this change in the Orange Book. FDA will generally designate the generic version of the drug with the largest market share as the new reference-listed drug. In this case, the labels of other generic versions of the drug will be expected to follow the label of the newly designated generic, reference-listed drug.

FDA Has Not Taken Sufficient Steps to Ensure That Antibiotic Labels Contain Up-to-Date Information

FDA has not taken sufficient steps to implement the FDAAA provision regarding preserving antibiotic effectiveness by ensuring that antibiotic labels contain up-to-date breakpoints. In 2008 FDA requested that sponsors respond to the agency regarding whether their antibiotics’ labels included up-to-date breakpoints, but FDA has not yet confirmed whether the majority of these labels are accurate. FDA also took the step of issuing guidance in 2009 on sponsors’ responsibility to maintain up-to- date breakpoints on their antibiotics’ labels, but the agency has not been systematically tracking sponsors’ responsiveness.

FDA Has Taken Some Steps, but Has Not Yet Confirmed That Breakpoint Information Is Up-to-Date for Many Antibiotics

Although FDA has taken steps to update breakpoint information on antibiotic labels, as of November 2011, it has not confirmed that the information is up to date for most reference-listed antibiotics. As one step in FDA’s efforts to implement the FDAAA provision regarding antibiotic effectiveness, FDA identified 210 antibiotics and, in January and February 2008, sent letters to the sponsors of these drugs reminding them of the importance of regularly updating the breakpoints on their antibiotic labels. In addition, the letters requested that sponsors evaluate and maintain the currency of breakpoints included on their labels and within 30 days submit evidence to FDA showing that the breakpoints were either current or needed revision. Sponsors that could not submit this evidence within 30 days were advised to provide the agency with a timetable for when they expected to respond with this information. If sponsors determined that their antibiotic labels needed revision, the agency’s letter instructed them to submit a label supplement. FDA’s letters also highlighted to sponsors that all subsequent annual reports should include an evaluation of these breakpoints and document the status of any needed changes to the antibiotic label.

As of November 2011, over 3.5 years after FDA sent its letters, 146, or 70 percent, of the 210 antibiotics are still labeled with breakpoints that have not been updated or confirmed to be up to date. For 78 of the 146 antibiotics, FDA has not yet received a submission regarding the currency of the breakpoints; for 12 of the antibiotics, the sponsors’ submissions are pending FDA review; and for 56 of the antibiotics, FDA determined that the sponsors’ submission was inaccurate or incomplete and therefore requested a revision or additional information. Thus far, FDA has determined that 64, or 30 percent, of the 210 antibiotics have up-to-date breakpoints (see fig. 1). (See app. II for more details on the status of the labels of the 210 antibiotics.)

One reason so many antibiotics still have breakpoints that FDA has not confirmed to be up to date is that many sponsors have not fulfilled the responsibilities outlined in FDA’s 2008 letters. FDA officials stated that the agency has followed up with sponsors that had not responded at all to the 2008 letters; however, it did not begin to do so until 2010—2 years after it asked sponsors to respond within 30 days—and two sponsors have still not informed FDA when they intend to submit the requested information. FDA officials told us that they routinely monitor the status of all requested submissions that they have not yet received. In particular, they told us that they have contacted sponsors to set time frames for submitting the requested information, and that they follow up with sponsors that do not submit information within the time frames established. FDA has not pursued regulatory action against any of these sponsors. FDA officials stated that the agency could take regulatory action against a sponsor whose label contained outdated breakpoints, as federal regulations require all sponsors of drugs to maintain accurate labels. However, the officials added that in order for FDA to take regulatory action against a sponsor, FDA would first have to be able to prove that the breakpoint on the antibiotic label was not up to date.

Another reason many antibiotics still have breakpoints on their labels that FDA has not confirmed to be up to date is that FDA faced difficulty in keeping up with the workload that resulted from sponsors’ breakpoint submissions. According to FDA officials, it should take 1 to 3 months for the agency to review such submissions when staff are available and the submissions include all of the necessary information. However, it took FDA longer than a year to review many of the submissions it received, and as of November 2011, FDA still had a backlog of five submissions from 2008. FDA officials identified four factors that have contributed to the lengthy time between when the agency received a submission and when it completed its review. First, FDA officials explained that the submissions sent in response to the agency’s 2008 letter generated a larger number of supplements than normal, adding significantly to FDA’s existing workload of label supplements. Second, some of the submissions required significantly more resources to review than typical label supplements, because of challenging scientific issues or difficulties obtaining data. Third, some of the sponsors’ submissions were inaccurate or did not include all necessary information. Fourth, FDA staff spent a significant amount of time answering questions from sponsors, tracking responses, and following up when needed.

Some of the sponsors we obtained comments from expressed frustration at how long it took FDA to review their submissions, especially given that bacterial resistance to antibiotics is not static and breakpoints may continue to change over time. Specifically, 3 of the 26 sponsors we obtained comments from stated that they are concerned that the breakpoints they submitted may be outdated by the time FDA completes its review. One of these sponsors told us that it was advised by FDA to refrain from submitting new information before the agency completed its review of the sponsor’s previously submitted label supplement. According to the sponsor, FDA officials said that providing new information would result in the sponsor’s submission going to the end of FDA’s review queue.

While the fact that breakpoints on the labels of 146 antibiotics may not be up to date is troubling, there are additional reasons for concern. First, nearly all of these 146 antibiotics are reference-listed drugs—thus, in addition to the labels of these drugs, the labels of the generic antibiotics that follow the labels of the reference-listed antibiotics are also uncertain. Second, because bacterial resistance to antibiotics is not static, some of the breakpoints for the 64 antibiotics that FDA has confirmed through its review as up to date may have since become out of date. Third, FDA’s list of 210 drugs did not include a complete list of all the antibiotics for which sponsors are responsible for evaluating and maintaining the breakpoints on their labels. For example, FDA did not include any brand-name drugs that were discontinued at the time the agency compiled its list, and also did not include some antibiotics that were reference-listed drugs at that time. FDA officials were unsure how many antibiotics were omitted, but estimated that the number was low. Given the uncertainty surrounding the 146 antibiotics whose breakpoints have not yet been confirmed as well as the antibiotics omitted from FDA’s 2008 request to sponsors, more than two-thirds of reference-listed antibiotic labels may contain out-of-date breakpoints.

FDA Issued Guidance on Sponsors’ Responsibility to Evaluate and Maintain Up- to-Date Breakpoints, but Has Not Been Tracking Their Responses

Another step FDA took to implement the FDAAA provision regarding preserving the effectiveness of antibiotics was to issue guidance that reminded sponsors of the requirement to maintain accurate labels, and thus, their responsibility to keep information about breakpoints up to FDA officials stated that in part because the agency received date.questions in response to its 2008 letters, officials determined that it would be useful to issue guidance. FDA first issued draft guidance in June 2008 and finalized it a year later, in June 2009. The guidance specified that the sponsors of brand-name and generic antibiotics that are designated as reference-listed drugs are responsible for evaluating their breakpoints on labels at least annually and should include this evaluation in the sponsor’s annual report to FDA. When we asked for clarification as to whether the guidance language limited this responsibility to the sponsors of those brand-name antibiotics that are reference listed, FDA officials told us that the guidance applied to sponsors of all brand-name antibiotics—both those that were and were not reference listed, including those that are discontinued—as well as sponsors of reference-listed, generic antibiotics. The guidance also described approaches sponsors could take to determine up-to-date breakpoints for their antibiotics. While FDA’s 2008 letters to certain sponsors communicated much of the same information, FDA’s guidance was the first time that FDA specified (1) which sponsors are responsible for evaluating their breakpoints, including that this responsibility applied to sponsors of generic, reference-listed antibiotics, and (2) the frequency with which sponsors needed to perform these evaluations.

FDA has not been systematically tracking whether sponsors have been responsive to the guidance. Specifically, FDA does not know what percentage of antibiotic annual reports have included an evaluation of breakpoints. At our request, FDA reviewed a small sample of annual reports and this review suggested that sponsors’ responsiveness to the annual reporting responsibility is low. FDA reviewed the most recent annual reports for 19 of the 64 antibiotics that FDA confirmed to be labeled with up-to-date breakpoints after receiving a response to the agency’s 2008 letters. FDA found that 10 of the 19, or just over half, of these annual reports included an evaluation of the antibiotics’ breakpoints. group of antibiotics—that is, those for which a sponsor already responded to FDA’s 2008 letter with a submission regarding the currency of their breakpoints—the overall rate for all antibiotics is likely even lower.

FDA looked at a subset of the 64 antibiotics that were also brand-name drugs and for which the sponsor had submitted its most recent annual report electronically. Three of the 19 antibiotics in FDA’s sample had annual reports that noted that a label supplement was recently approved but had not been implemented in time to be reflected in the report.

Because bacterial resistance to antibiotics is not static, sponsors that do not follow the guidance by evaluating their breakpoints on a regular basis and sharing the results of their evaluation with FDA are unlikely to be able to maintain accurate labels. FDA officials stated that they plan to track compliance with the guidance in one of the agency’s drug databases by January 1, 2012. FDA plans to have all annual reports for antibiotics reviewed by FDA microbiologists who will use a standardized form to document the assessment of the antibiotics’ breakpoints. In addition, the agency plans to track whether the annual report included an evaluation of the antibiotics’ breakpoints in an FDA database. FDA plans to follow up with sponsors that do not include a complete evaluation of antibiotic breakpoints in their annual reports to inform them about what information was missing.

Some sponsors, particularly sponsors of generic, reference-listed antibiotics, may not be following FDA’s guidance because they are confused as to whether the responsibility to evaluate and maintain up-to- date breakpoints on their labels, as described in the guidance, applies to them. Fifteen sponsors we obtained comments from manufactured at least one generic, reference-listed antibiotic—all were responsible for evaluating and maintaining their breakpoints. Of these 15, 7 sponsors expressed some form of confusion regarding their responsibility. Five of these 7 sponsors stated that their strategy for ensuring that the breakpoints on their generic antibiotic labels were up to date was to follow the breakpoints on the label of the corresponding brand-name drug. Two of the 5 were even more specific and added that their generic antibiotics were only designated reference-listed drugs “by default” and that their strategy was to follow the label of the brand-name drug—even if the brand-name drug was discontinued. One other sponsor was unsure whether any of its generic antibiotics were reference-listed drugs or what implications such a designation would have. A seventh sponsor understood the responsibilities associated with having a generic antibiotic that was designated a reference-listed drug, but was under the impression that its generic antibiotic was not a reference-listed drug.

FDA officials told us that it is a sponsor’s responsibility to routinely monitor FDA’s Orange Book to determine if any of its drugs become designated a reference-listed drug. However, FDA’s June 2009 guidance is silent on sponsors’ responsibility to consistently monitor the Orange Book to determine if one of their drugs has become, or ceases to be, a reference-listed drug. The officials acknowledged that there is no process or mechanism for notifying sponsors when one of their drugs becomes, or is no longer, a reference-listed drug. The guidance was also not explicit about FDA’s view that the responsibility described in the guidance also applied to sponsors of discontinued brand-name antibiotics.

The guidance also explained that FDA intended to comply with FDAAA’s requirement that it identify, periodically update, and make publicly available up-to-date breakpoints by using two approaches. First, the guidance explained that the agency would review breakpoints referenced in the labeling of individual drug products and post any approved labels on the Internet. FDA officials told us that this is the approach FDA has thus far used to make up-to-date breakpoints publicly available. Second, FDA’s guidance also stated that it would, when appropriate, recognize standards used to determine breakpoints from one or more standards- FDA setting organizations and publish these in the Federal Register.has not yet used this approach and did not mention a specific plan or timetable to do so. FDA officials told us that publishing this information in the Federal Register could make the review process quicker as sponsors would then have ready access to standards already recognized by FDA.

For example, publishing this information may be helpful for some sponsors, such as those that do not have the microbiology expertise to update their own breakpoints. While FDA officials said that they have been making updated breakpoints publicly available, the agency’s guidance regarding these alternative approaches may be causing confusion among some sponsors that are anticipating the publication of breakpoints from standards-setting organizations in the Federal Register. This was the case for one sponsor we obtained comments from, which stopped purchasing data from a standard-setting organization because it believed FDA would be publishing recognized standards in the Federal Register.

FDAAA Provisions Related to Innovation Do Not Appear to Have Encouraged the Development of New Antibiotics

The FDAAA provision that grants extended market exclusivity has not resulted in any sponsors submitting NDAs for antibiotics that qualify for this exclusivity. Additionally, as required by FDAAA, FDA held a public meeting to discuss incentives, such as those available under the Orphan Drug Act, to encourage antibiotic innovation. However, no changes were made to the availability of current incentives nor were any new incentives established following the public meeting.

No New Drug Applications for Antibiotics Have Been Submitted under FDAAA’s Extended Market Exclusivity Provision

To date, drug sponsors, including those we received comments from, have not submitted any NDAs for antibiotics as a result of the FDAAA provision granting additional market exclusivity for new drugs containing single enantiomers of previously approved racemic drugs. According to FDA officials, they have received very few inquiries regarding this provision and as of November 2011, no NDAs for antibiotics have been submitted that would qualify for this exclusivity. FDA officials noted that because it is a narrowly targeted provision, they are unsure if any existing racemic drug could qualify. None of the drug sponsors from which we obtained comments said that this FDAAA provision provided a sufficient incentive to develop a new antibiotic of this type.

FDA officials stated that it was unlikely that this provision would have an impact on antibiotic innovation. The officials stated that the requirement that the single enantiomer of the approved drug be in a separate therapeutic category would be challenging for antibiotic sponsors to meet. The officials noted that this market exclusivity was not limited to antibiotics. One drug sponsor we spoke with stated that it is pursuing this market exclusivity for a drug that is not an antibiotic.

The lack of NDAs for antibiotics submitted in response to this FDAAA provision is consistent with the overall trend in the approval of innovative antibiotic NDAs. The number of annual approvals of antibiotic NMEs from 2001 through 2010 has not changed significantly since the passage of FDAAA. Specifically, the annual number of antibiotic NME approvals was two or less for the years prior to, and one or less for the years following, the enactment of FDAAA. Because drug development is a lengthy process—sponsors spend, on average, 15 years developing a new drug—it may be too early to ascertain the full impact of FDAAA on antibiotic innovation. However, the extended exclusivity provided for in FDAAA is only available to sponsors submitting qualifying NDAs before October 1, 2012.

FDA Public Meeting Required by FDAAA Facilitated Discussion of Existing and Potential Incentives for Antibiotic Innovation

As required by FDAAA, FDA held a public meeting on April 28, 2008, to explore whether and how existing incentives and potential new incentives could be applied to promote the development of antibiotics as well as to discuss whether infectious diseases may qualify for grants or other incentives that may promote innovation. The meeting provided an opportunity to gather input from stakeholders and address their concerns. However, although potential new incentives and changes to current ones were suggested at the meeting, many of these suggestions—such as tax incentives and extended market exclusivities—would require a statutory change.

One of the discussion topics at the public meeting related to the circumstances under which antibiotics could qualify for incentives provided under the Orphan Drug Act, which is intended to stimulate the development of drugs for rare diseases—conditions that affect fewer than 200,000 people in the United States. Following the public meeting, FDA responded in writing to an inquiry from one stakeholder to clarify that an antibiotic could qualify for an orphan drug designation when the drug’s use is restricted to the treatment of a small population of patients with an infection caused by a specific pathogen. Our examination of FDA data suggests that orphan drug designation is not common for antibiotics. These data show that the annual number of antibiotics that received an orphan drug designation from 2001 to 2007—when FDAAA was enacted—was three drugs or fewer each year. The number of antibiotics that received orphan drug designation following FDAAA’s enactment in 2007 has remained constant at this rate through 2010. Additionally, not all antibiotics that have been awarded orphan drug designation have been or will apply to be approved for marketing. Of the 15 antibiotics that received an orphan drug designation from 2001 through 2010, only 1 was approved for marketing as of November 2011.

In addition to discussing the applicability of the Orphan Drug Act, the agency gathered input during the public meeting from drug sponsors and other parties—such as those in academia and professional associations—on serious and life-threatening infectious diseases, antibiotic resistance, and incentives for antibiotic innovation. The incentives mentioned as useful mechanisms to encourage the innovation and marketing of antibiotics were both financial and regulatory in nature and are summarized in table 1.

Conclusions

The growing public health threat associated with bacterial resistance to antibiotics makes the development of new antibiotics critical. Although FDAAA contained a provision to encourage the development of certain antibiotics, no sponsor has submitted an application for a new drug that meets the law’s specific criteria. FDAAA also recognized that up-to-date breakpoints are vital to preserving the effectiveness of antibiotics. Antibiotic labels containing out-of-date breakpoints can lead clinicians to choose less effective treatments and provide additional opportunities for bacteria to develop resistance. Out-of-date breakpoints on labels of reference-listed antibiotics also have a ripple effect on the accuracy of the labels of other antibiotics because other sponsors must match the labels of the corresponding reference-listed drugs. However, more than 4 years after FDAAA’s enactment, there continues to be uncertainty about the accuracy of the labels of more than two thirds of reference-listed antibiotics, as well as those of the generic antibiotics that are required to follow these drugs’ labels.

The steps FDA has taken since the enactment of FDAAA have been insufficient to ensure that all antibiotics have up-to-date breakpoints on their labels. The agency has acted with neither decisiveness nor a sense of urgency. First, FDA has not yet completed reviewing the submissions it received in response to its 2008 request and many sponsors still have not provided FDA with needed information. Further, FDA officials told us that they sent letters to sponsors of 210 antibiotics. These sponsors were responsible for evaluating and maintaining, and if necessary, updating the breakpoints on their labels; however, FDA’s request was not made to all the antibiotic sponsors that held this responsibility. While the agency did follow up with sponsors, this was not done in a timely manner. FDA’s review of sponsors’ submissions has also been time-consuming; given that sponsors are expected to provide information on the effectiveness of these breakpoints annually. It is unclear how the agency plans to keep up with this workload if sponsors’ fulfillment of this responsibility improves.

Second, FDA’s issuance of guidance to specify the responsibilities of antibiotics’ sponsors to evaluate breakpoints appears to have been unsuccessful at encouraging all sponsors to fulfill these responsibilities. The comments we received from drug sponsors indicate that some antibiotic sponsors remain confused about this responsibility—either because they did not know that their antibiotics were reference-listed drugs or because they interpreted the June 2009 FDA guidance differently than FDA intended. Without formal notification that their antibiotics have been designated as reference-listed drugs and a clarification of their responsibilities, sponsors may continue to be unaware of, or have differing interpretations of a responsibility that ultimately helps preserve antibiotic effectiveness.

The pace of FDA’s actions—many of which remain incomplete—means that the majority of antibiotics we examined may have out-of-date breakpoints on their labels that could result in the prescription of ineffective treatments by health care providers and further contribute to antibiotic resistance. This requires concerted action on the part of the agency to help preserve the effectiveness of currently available antibiotics.

Recommendations for Executive Action

We recommend that the Commissioner of FDA take the following six actions to help ensure that antibiotics are accurately labeled: expeditiously review sponsors’ submissions regarding the breakpoints on their antibiotics’ labels; take steps to obtain breakpoint information from sponsors that have not yet submitted breakpoint information in response to the 2008 letters sent by the agency; ensure that all sponsors responsible for the annual review of breakpoints on their antibiotics’ labels—including discontinued brand- name antibiotics and reference-listed antibiotics designated since 2008—have been reminded of their responsibility to evaluate and maintain up-to-date breakpoints; establish a process to track sponsors’ submissions of breakpoint information included in their annual reports to ensure that such information is submitted to FDA and reviewed by the agency in a timely manner; notify sponsors when one of their drugs becomes or ceases to be a clarify or provide new guidance on which antibiotic sponsors are responsible for annually evaluating and maintaining up-to-date breakpoints on drug labels.

Agency Comments and Our Evaluation

HHS reviewed a draft of this report and provided written comments, which are reprinted in appendix IV. In its comments, HHS acknowledged the importance of updating antibacterial breakpoints and said that FDA is committed to ensuring that breakpoint information on drug labels is up to date. Although HHS did not specifically indicate whether it agreed with our recommendations, the agency stated that it will consider all of them as it continues to improve its processes to ensure that antibacterial drug labels contain up-to-date breakpoint information. HHS also stated that FDA has already taken steps to expedite the review of sponsor submissions regarding updated breakpoint information, which is consistent with our recommendations.

In addition, HHS expressed concern that our report did not fully capture the challenges associated with updating the labels of antibacterial drugs. HHS summarized the approach FDA used to address the provision in FDAAA related to antibiotic effectiveness and highlighted the challenges sponsors face in obtaining currently relevant and adequate scientific data to assess antibiotic breakpoints. However, we believe that our report accurately describes the same actions that HHS outlined in its comments. Similarly, we believe that our report acknowledges the challenges surrounding sponsors’ responsibility to maintain up-to-date breakpoints. We recognize that these challenges pose difficulties for both sponsors and FDA. However, FDA is ultimately responsible for ensuring that drugs, including antibiotics, are safe and effective. Despite the agency’s efforts, 4 years have elapsed since FDA first began contacting drug sponsors regarding the accuracy of the breakpoints on 210 of their antibiotics’ labels. Yet there continues to be uncertainty about the accuracy of the labels for two-thirds of these drugs. Given the serious threat to public health posed by antibiotic resistance, we believe that it is important that our recommendations are implemented, in order to help preserve the effectiveness of these critical drugs.

Finally, HHS provided us with new information, reporting that as of December 12, 2011, the labeling for 66 antibacterial drugs has been updated or found to be correct. This is an increase of 2 antibacterial drugs, up from the 64 antibacterial drugs that are cited in our report. We include this information here, but did not revise our report, as HHS did not provide a complete update regarding all of the 210 antibiotics discussed in this report. HHS also provided technical comments that were incorporated, as appropriate.

We are sending copies of this report to the Secretary of Health and Human Services and appropriate congressional committees. In addition, the report will be available at no charge on the GAO website at http://www.gao.gov.

If you or your staffs have any questions about this report, please contact me at (202) 512-7114 or crossem@gao.gov. Contact points for our Office of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix V.

Appendix I: Drug Sponsors Contacted by FDA in 2008 Regarding Information on Antibiotic Labels

As one step in FDA’s efforts to implement the provision in the Food and Drug Administration Amendments Act of 2007 regarding antibiotic effectiveness, FDA identified 210 antibiotics for which sponsors were responsible for evaluating and maintaining and, if necessary, updating the breakpoints on their antibiotics’ labels. In January and February of 2008, FDA sent letters to the sponsors of these drugs reminding them of the importance of regularly updating the breakpoints on their antibiotic labels. In addition, the letters requested that sponsors evaluate and maintain the currency of breakpoints included on their labels and within 30 days submit evidence to FDA showing that the breakpoints were either current or needed revision. Of the 210 antibiotics, 126 were brand-name antibiotics and 84 were generic antibiotics, manufactured by 39 different sponsors. Table 2 identifies these 39 sponsors and whether the sponsor held a brand-name antibiotic, a generic antibiotic, or both.

Appendix II: Status of Labels for 210 Antibiotics Specified in FDA’s 2008 Letters

Number of antibiotics for which (NDA)

Abbreviated new drug applications (ANDA)

Appendix III: Timeline of FDA Implementation of Certain Food and Drug Administration Amendments Act Provisions

Appendix III: Timeline of FDA Implementation of Certain Food and Drug Administration Amendments Act Provisions See FDA, Guidance for Industry: Updating Labeling for Susceptibility Test Information in Systemic Antibacterial Drug Products and Antimicrobial Susceptibility Testing Devices (June 2009).

Appendix IV: Comments from the Department of Health and Human Services

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Geri Redican-Bigott, Assistant Director; Alison Binkowski; Ashley R. Dixon; Cathleen Hamann; Lisa Motley; Patricia Roy; Laurie F. Thurber; and Jocelyn Yin made key contributions to this report.