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Federal Food, Drug, and Cosmetic Act
Great Seal of the United States
Acronyms (colloquial)FFDCA, "FD&C Act"
Enacted bythe 75th United States Congress
Citations
Public law75-717
Statutes at Large52 US Stat. 1040
Codification
U.S.C. sections created21 U.S.C. § 301 et seq
Legislative history
  • Signed into law by President Franklin D. Roosevelt on June 25, 1938
Major amendments
1951 Food, Drug, and Cosmetics Act Amendments, PL 82–215, 65 Stat 648, 1962 Food, Drug, and Cosmetics Act Amendments, PL 87–781, 76 Stat 780, Fair Packaging and Labeling Act, PL 89–755, 80 Stat 1296, Medical Device Regulation Act, PL 94–295, 90 Stat 539, Radiation Control for Safety and Health Act, PL 90-602, 82 Stat 1173, Drug Price Competition and Patent Term Restoration Act of 1984, PL 98-471, 98 Stat 1585, Nutrition Labeling and Education Act (1990), PL 101-535, 104 Stat 2353, Safe Medical Device Amendments of 1990, PL 101-629, 104 Stat 4511, Food and Drug Administration Revitalization Act, PL 101-635, 104 Stat 4583, Dietary Supplement Health and Education Act (1994), PL 103-417, 108 Stat 4332, Food and Drug Administration Modernization Act of 1997, PL 105-115, 111 Stat 2296, Food and Drug Administration Amendments Act of 2007, PL 110-85, 121 Stat 823[1] The Federal Food, Drug, and Cosmetic Act of 1938 was passed after a legally marketed toxic elixir killed 107 people, including many children. The FD&C Act completely overhauled the public health system. Among other provisions, the law authorized the FDA to demand evidence of safety for new drugs, issue standards for food, and conduct factory inspections (Barton).

The United States Federal Food, Drug, and Cosmetic Act (abbreviated as FFDCA, FDCA, or FD&C), is a set of laws passed by Congress in 1938 giving authority to the U.S. Food and Drug Administration (FDA) to oversee the safety of food, drugs, and cosmetics. A principal author of this law was Royal S. Copeland, a three-term U.S. Senator from New York.[2] In 1968, the Electronic Product Radiation Control provisions were added to the FD&C. Also in that year the FDA formed the Drug Efficacy Study Implementation (DESI) to incorporate into FD&C regulations the recommendations from a National Academy of Sciences investigation of effectiveness of previously marketed drugs.[3] The act has been amended many times, most recently to add requirements about bioterrorism preparations.

The introduction of this act was influenced by the death of more than 100 patients due to a sulfanilamide medication where diethylene glycol was used to dissolve the drug and make a liquid form.[4] See Elixir Sulfanilamide disaster. It replaced the earlier Pure Food and Drug Act of 1906.

Contents[edit]

The FD&C Act has twenty chapters:[5]

I. Short Title
II. Definitions
  • 201(f) is the definition for a food, which explicitly includes chewing gum
  • 201(g) is the definition for a drug
  • 201(h) is the definition for a medical device
  • 201(s) is the definition of a food additive
  • 201(ff) is the definition of a dietary supplement
III. Prohibited Acts and Penalties
This section contains both civil law and criminal law clauses. Most violations under the act are civil, though repeated, intentional, and fraudulent violations are covered as criminal law. All violations of the FD&C Act require interstate commerce because of the commerce clause, but this is often interpreted broadly and few products other than raw produce are considered outside of the scope of the act.
Notably, the FD&C Act uses strict liability due to the Dotterweich[6] and Park [7] Supreme Court cases. It is one of a very small number of criminal statutes that does.
IV. Food The Secretary shall take action on a request for export of a drug under this paragraph within 60 days of receiving such request.
(c) A drug or device intended for investigational use in any country described in clause (i) or (ii) of subsection (b)(1)(A) may be exported in accordance with the laws of that country and shall be exempt from regulation under section 505(i) or 520(g)(Johnson).
There is a distinction in food adulteration between those that are added and those that are naturally present. Substances that are added are held to a stricter "may render (it) injurious to health" standard, whereas substances that are naturally present need only be at a level that "does not ordinarily render it injurious to health"[8]
V. Drugs and Devices
  • 505 is the description of the drug approval process
  • 510(k) is the section that allows for clearance of class II medical devices
  • 515 is the description of the (class III) device approval process
VI. Cosmetics
VII. General Authority
  • 704 allows inspections of regulated entities. Inspection results are reported on Form 483.
VIII. Imports and Exports
IX. Miscellaneous

Food coloring[edit]

The FD&C is perhaps best known by the consumer because of its use in the naming of food coloring additives, such as "FD&C Yellow No. 6." The Act made the certification of some food color additives mandatory. Some food colorings are generally recognized as safe (GRAS) by the FDA and do not require certification.[9]

The FDA lists nine FD&C (Food, Drugs & Cosmetics) certified color additives for use in foods in the United States, and numerous D&C (Drugs & Cosmetics) colorings allowed only in drugs for external application or cosmetics. Color additives derived from natural sources, such as vegetables, minerals or animals, and man-made counterparts of natural derivatives, are exempt from certification. Both artificial and natural color additives are subject to rigorous standards of safety before their approval for use in foods.[citation needed]

Certifiable colors[edit]

Name Common name Color Comment
FD&C Blue No. 1 Brilliant Blue FCF bright blue
FD&C Blue No. 2 Indigotine royal blue
FD&C Green No. 3 Fast Green FCF sea green
FD&C Red No. 3 Erythrosine cherry red
FD&C Red No. 40 Allura Red AC orange-red
FD&C Yellow No. 5 Tartrazine lemon yellow
FD&C Yellow No. 6 Sunset Yellow FCF orange
Orange B Restricted to specific uses
Citrus Red No.2 Restricted to specific uses

There are also "D&C" colors that are only approved for use in pharmaceuticals for external application and cosmetics.

Food additives[edit]

The FFDCA requires producers of food additives to demonstrate to a reasonable certainty that no harm will result from the intended use of an additive. If the FDA finds an additive to be safe the agency issues a regulation specifying the conditions under which the additive may be safely used.

Definition of food additive[edit]

The definition of "food additive" is "any substance, the intended use of which results directly or indirectly, in its becoming a component or otherwise affecting the characteristics of food"[10]. A food additive requires a premarket approval by the FDA unless excluded from this requirement as a substance that is generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures (or, in the case of a substance used in food before January 1, 1958, through either scientific procedures or through experience based on common use in food) to be safe under the conditions of its intended use. This is the so called generally recognized as safe (GRAS) exemption.[11]

Genetically modified foods are regarded as containing food additives[edit]

These regulations apply to foods produced by genetic engineering and natural sources, if the protein added to the food by the genetic engineering process is not "generally recognized as safe" then genetically modified food is regarded as containing a "food additive" and is subject to pre-market approval by the FDA.[12] All genetically modified foods sold in the USA have been subject to this FDA pre-market approval process.

Homeopathic medications[edit]

Homeopathic preparations are regulated and protected under Sections 201(g) and 201(j), provided that such medications are formulated from substances listed in the Homeopathic Pharmacopoeia of the United States, which the Act recognizes as an official drug compendium.

Bottled water[edit]

Bottled water is regulated by FDA as a food. The Agency has published identity standards for types of water (mineral water, spring water), and regulations covering water processing and bottling, water quality and product labeling.[13][14] [15]

Cosmetics[edit]

This Act defines cosmetics as products for "cleansing, beautifying, promoting attractiveness, or altering the appearance." In this sense the FDA can classify cosmetics without actually regulating them. This allows a manufacturer the ability to use ingredients or raw materials and market the final product without government approval.

Section 510(k) and the device approval process[edit]

Section 510(k)[16] of the Federal Food, Drug, and Cosmetic Act requires those device manufacturers who must register to notify FDA, at least 90 days in advance, of their intent to market a medical device.

This is known as Premarket Notification - also called PMN or 510(k) . It allows FDA to determine whether the device is equivalent to a device already placed into one of the three classification categories. Thus, "new" devices (not in commercial distribution prior to May 28, 1976) that have not been classified can be properly identified.

Any device that reaches market via a 510(k) notification must be "substantially equivalent" to a device on the market prior to May 28, 1976 (a "predicate device"). If a device being submitted is significantly different, relative to a pre-1976 device, in terms of design, material, chemical composition, energy source, manufacturing process, or intended use, the device nominally must go through a premarket approval, or PMA. This does not always happen.

As of 2007, this has been implemented by splitting devices into three classes:

  • Class I: Devices that do not require premarket approval or clearance but must follow general controls. Dental floss is a class I device.
  • Class II: Devices that are cleared using the 510(k) process. Diagnostic tests, cardiac catheters, and amalgam alloys used to fill cavities are all class II devices. The "predicate device" in question is often quite different, and this process is largely used to clear devices for marketing which do not meet the criteria to be considered class III. Hearing aids are class II devices.
  • Class III: Devices that are approved by the Premarket Approval (PMA) process, analogous to a New Drug Application. These tend to be devices that are permanently implanted into a human body or may be necessary to sustain life. An artificial heart meets both criteria. The most commonly recognized class III device is an Automated External Defibrillator. Devices that do not meet either criterion are generally cleared as class II devices.

A device that reaches market via the 510(k) process is not considered to be "approved" by the FDA. Nevertheless, it can be marketed and sold in the United States. They are generally referred to as "cleared" or "510(k) cleared" devices.

Some economists support pre-market approval of drugs and devices mainly based on the belief that imperfect information exists in the market.[17]

Related legislation[edit]

The Wheeler-Lea Act, passed in 1938, granted the Federal Trade Commission the authority to oversee advertising of all products regulated by FDA, other than prescription drugs.

Significant amendments and related laws[edit]

Descriptions of these can be found at the FDCA's web site.[18]

Amendments:

Other laws:[19]

Comparison to state laws[edit]

Some US states have adopted the FD&C Act as an equivalent state law and will by default adopt any changes to the Federal law as changes to the state law as well.

See also[edit]

References[edit]

  1. ^ "Food, Drug, and Cosmetic Law Research Guide," Georgetown Law Library
  2. ^ Homeopathic Drugs, Royal Copeland, and Federal Drug Regulation
  3. ^ CDER - Time Line
  4. ^ ASHP Website : News Article
  5. ^ Federal Food, Drug, and Cosmetics Act Table of Contents
  6. ^ United States v. Dotterweich, 320 U.S. 277 (1943)
  7. ^ UNITED STATES V. PARK, 421 U. S. 658 (1975) - US Supreme Court Cases from Justia & Oyez
  8. ^ FD&C Act Chapter IV
  9. ^ US FDA/CFSAN: Color Additive Status List
  10. ^ [1] FDA website "Determining the Regulatory Status of a Food Ingredient" Page Last Updated: 01/10/2011
  11. ^ Federal Register Volume 62, Number 74 (Thursday, April 17, 1997)
  12. ^ FDA/USDA US Food Safety System Country Report Annex II: Precaution in US Food Safety Decisionmaking
  13. ^ Posnick, Lauren M. and Kim, Henry (2002). "Bottled Water Regulation and the FDA." Food Safety. August/September 2002. ISSN 1084-5984.
  14. ^ FDA. "21 CFR Part 129 - Processing and Bottling of Bottled Drinking Water." Code of Federal Regulations.
  15. ^ FDA. "21 CFR 165.110 - Requirements for Specific Standardized Beverages: Bottled Water." Code of Federal Regulations.
  16. ^ US FDA/CDRH: Information on Releasable 510(k)s
  17. ^ Briggeman, Jason and Daniel Klein and Kevin Rollins. "44 Economists Answer Questionnaire on the Pre-Market Approval of Drugs and Devices". Econ Journal Watch 7(2) pg 162-173. [2]
  18. ^ Laws Enforced by the FDA and Related Statutes
  19. ^ Food and Drug Administration Amendment Act of 2007

External links[edit]

{{DEFAULTSORT:Federal Food, Drug, And Cosmetic Act}} [[Category:1938 in law]] [[Category:United States federal healthcare legislation|Food, Drug, and Cosmetic Act]] [[Category:Pharmaceuticals policy]] [[Category:Medical Devices regulations]] [[Category:Food law]] [[Category:Food and Drug Administration]] [[Category:Adulteration]] [[es:Ley Federal de Alimentos, Medicamentos y Cosméticos de Estados Unidos]] [[pl:Federalna Ustawa o Żywności, Lekach i Kosmetykach]]

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