Michael Werner is a Partner in the Washington D.C. office
FDA Commissioner Scott Gottlieb, MD, posted a blog today announcing new FDA initiatives re: regulation of digital health technologies to be piloted this fall. Gottlieb said that the agency is considering whether and how it can establish a third party certification program "under which lower risk digital health products could be marketed without FDA premarket review and higher risk products could be marketed with a streamlined FDA premarket review." Details are still being worked out, but Gottlieb noted that certification could be used to assess whether a company "consistently and reliably" engages in high quality software design and testing and ongoing maintenance of its software products.
Dr. Gottlieb also said the FDA will use collection and analysis of real-world data (data gathered outside of clinical trials or controlled studies) by product developers to meet post-market commitments. He also noted that FDA is working to implement the digital health provisions of the 21st Century Cures Act and will be publishing guidance to further clarify what falls outside the scope of FDA regulation and to explain how the new statutory provisions affect pre-existing FDA policies.
In addition, Dr. Gottlieb gave a status report on other relevant guidance saying that FDA is developing guidance to clarify its position on products that contain multiple software functions, where some fall outside the scope of FDA regulation, but others do not and that the agency will develop new guidance on other technologies that present low enough risks that FDA does not intend to subject them to certain pre-market regulatory requirements.
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