§360fff–3 — Title 21 Food and Drugs | U.S. Code

Summary

The FDA must review requests about nonprescription sunscreen ingredients on a set schedule. For a new request, the agency has up to 300 calendar days after the request is filed to review it, may call the Advisory Committee to help, and must issue a proposed sunscreen order. If the FDA misses that 300-day deadline, the requestor can ask the Commissioner to act, and the Commissioner must issue the proposed order within 60 days. The proposed order is open for 45 days of public comment. The requestor can ask for a meeting within 30 days of the proposed order, and the FDA must hold that meeting within 45 days. The FDA must issue a final order either 90 days after the public comment period for some kinds of proposals, or 210 days after the requestor provides additional information for other kinds. If the FDA misses those final-decision deadlines, the requestor can ask the Commissioner to step in, and the Commissioner must issue the final order within 60 days. For requests pending as of November 26, 2014, certain prior FDA letters are treated as proposed orders and must be posted online and announced in the Federal Register within 45 days after that date. If no such letter was issued before that date, the FDA had 90 days after November 26, 2014 to issue a proposed order. Those proposed orders also get 45 days for public comment and the same meeting rights, including confidential meetings when needed, with post-meeting summaries that do not reveal trade secrets. The Advisory Committee may be used to review pending requests. If the Advisory Committee is used, final-decision deadlines can extend (up to 270 days in some cases). The FDA will not be forced to call the Advisory Committee more than once per request, more than twice a year for these reviews, or to send more than three requests to the Committee in a single meeting. Certain duties given to the Commissioner may not be delegated. A final sunscreen order lets a safe, properly labeled ingredient be marketed; if an ingredient is found not safe or misbranded it cannot be sold unless a drug application is approved or conditions change. A final order can be reopened if new information appears or after a petition. A final order is treated as a final agency order, and it gives the requestor (and listed licensees or successors) an exclusive 18‑month right to market the covered ingredient change, only once per ingredient.

Title 21, §360fff–3

Food and Drugs — Source: USLM XML via OLRC

(a)(1)In the case of a request under section 360fff–1 of this title, not later than 300 calendar days after the date on which such request is filed under subsection (b)(2)(A) or (b)(3)(B)(ii)(III) of section 360fff–2 of this title, the Secretary—

(A)may convene a meeting of the Advisory Committee to review such request; and

(B)shall complete the review of such request and issue a proposed sunscreen order with respect to such request.

(2)If the Secretary does not issue a proposed sunscreen order under paragraph (1)(B) within such 300-day period, the sponsor of such request may notify the Office of the Commissioner of such request and request review by the Office of the Commissioner. If such sponsor so notifies the Office of the Commissioner, the Commissioner shall, not later than 60 calendar days after the date of notification under this paragraph, issue a proposed sunscreen order with respect to such request.

(3)A proposed sunscreen order issued under paragraph (1)(B) or (2) with respect to a request shall provide for a period of 45 calendar days for public comment.

(4)A sponsor may request, in writing, a meeting with respect to a proposed sunscreen order issued under this subsection and described in subparagraph (B) or (C) of section 360fff(7) of this title, not later than 30 calendar days after the Secretary issues such order. The Secretary shall convene a meeting with such sponsor not later than 45 calendar days after such request for a meeting.

(5)With respect to a proposed sunscreen order under paragraph (1)(B) or (2)—

(A)the Secretary shall issue a final sunscreen order—

(i)in the case of a proposed sunscreen order described in subparagraph (A) or (B) of section 360fff(7) of this title, not later than 90 calendar days after the end of the public comment period under paragraph (3); or

(ii)in the case of a proposed sunscreen order described in subparagraph (C) of section 360fff(7) of this title, not later than 210 calendar days after the date on which the sponsor submits the additional information requested pursuant to such proposed sunscreen order; or

(B)if the Secretary does not issue such final sunscreen order within such 90- or 210-calendar-day period, as applicable, the sponsor of such request may notify the Office of the Commissioner of such request and request review by the Office of the Commissioner.

(6)The Commissioner shall issue a final sunscreen order with respect to a proposed sunscreen order subject to paragraph (5)(B) not later than 60 calendar days after the date of notification under such paragraph.

(b)(1)The review of a pending request shall be carried out by the Secretary in accordance with this subsection.

(2)section 360fff–1 and 360fff–2 of this title shall not apply with respect to any pending request.

(3)Notwithstanding the requirements of section 360fff(7) of this title, a letter issued pursuant to section 330.14(g) of title 21, Code of Federal Regulations before November 26, 2014, with respect to a pending request, shall be deemed to be a proposed sunscreen order and displayed on the Internet website of the Food and Drug Administration. Notification of the availability of such letter shall be published in the Federal Register not later than 45 calendar days after November 26, 2014.

(4)In the case of a pending request for which the Secretary has not issued a letter pursuant to section 330.14(g) of title 21, Code of Federal Regulations before November 26, 2014, the Secretary shall complete review of such request and, not later than 90 calendar days after November 26, 2014, issue a proposed sunscreen order with respect to such request.

(5)If the Secretary does not issue a proposed sunscreen order under paragraph (4), or the Secretary does not publish a notification of the availability of a letter under paragraph (3), as applicable, the sponsor of such request may notify the Office of the Commissioner of such request and request review by the Office of the Commissioner. The Commissioner shall, not later than 60 calendar days after the date of notification under this paragraph, issue a proposed order with respect to such request.

(6)A proposed sunscreen order issued under paragraph (4) or (5), or a notification of the availability of a letter under paragraph (3), with respect to a pending request shall provide for a period of 45 calendar days for public comment.

(7)(A)A sponsor may request, in writing, a meeting with respect to a proposed sunscreen order issued under this subsection, including a letter deemed to be a proposed sunscreen order under paragraph (3), not later than 30 calendar days after the Secretary issues such order or the date upon which such feedback letter is deemed to be a proposed sunscreen order, as applicable. The Secretary shall convene a meeting with such sponsor not later than 45 calendar days after the date of such request for a meeting.

(B)A sponsor may request one or more confidential meetings with respect to a proposed sunscreen order, including a letter deemed to be a proposed sunscreen order under paragraph (3), to discuss matters relating to data requirements to support a general recognition of safety and effectiveness involving confidential information and public information related to such proposed sunscreen order, as appropriate. The Secretary shall convene a confidential meeting with such sponsor in a reasonable time period. If a sponsor requests more than one confidential meeting for the same proposed sunscreen order, the Secretary may refuse to grant an additional confidential meeting request if the Secretary determines that such additional confidential meeting is not reasonably necessary for the sponsor to advance its proposed sunscreen order, or if the request for a confidential meeting fails to include sufficient information upon which to base a substantive discussion. The Secretary shall publish a post-meeting summary of each confidential meeting under this subparagraph that does not disclose confidential commercial information or trade secrets. This subparagraph does not authorize the disclosure of confidential commercial information or trade secrets subject to 552(b)(4) 11 So in original. Probably should be preceded by “section”. of title 5 or section 1905 of title 18.

(8)In the case of a proposed sunscreen order under paragraph (3), (4), or (5), an Advisory Committee meeting may be convened for the purpose of reviewing and providing recommendations regarding the pending request.

(9)In the case of a proposed sunscreen order under paragraph (3), (4), or (5)—

(A)the Secretary shall issue a final sunscreen order with respect to the request—

(ii)in the case of a proposed sunscreen order described in subparagraph (C) of section 360fff(7) of this title—

(I)if the Advisory Committee is not convened under paragraph (8), not later than 210 calendar days after the date on which the sponsor submits the additional information requested pursuant to such proposed sunscreen order, which shall include a rationale for not convening such Advisory Committee; or

(II)if the Advisory Committee is convened under paragraph (8), not later than 270 calendar days after the date on which the sponsor submits such additional information; or

(B)if the Secretary does not issue such final sunscreen order within such 90-, 210-, or 270-calendar-day period, as applicable, the sponsor of such request may notify the Office of the Commissioner about such request and request review by the Office of the Commissioner.

(10)The Commissioner shall issue a final sunscreen order with respect to a proposed sunscreen order subject to paragraph (9)(B) not later than 60 calendar days after the date of notification under such paragraph.

(c)The Secretary shall not be required to—

(1)convene the Advisory Committee—

(A)more than once with respect to any request under section 360fff–1 of this title or any pending request; or

(B)more than twice in any calendar year with respect to the review under this section; or

(2)submit more than a total of 3 requests under section 360fff–1 of this title or pending requests to the Advisory Committee per meeting.

(d)Any responsibility vested in the Commissioner by subsection (a)(2), (a)(6), (b)(5), or (b)(10) shall not be delegated.

(e)(1)(A)Upon issuance of a final sunscreen order determining that a nonprescription sunscreen active ingredient or combination of nonprescription sunscreen active ingredients is GRASE and is not misbranded, a sunscreen containing such ingredient or combination of ingredients shall be permitted to be introduced or delivered into interstate commerce for use under the conditions described in such final sunscreen order, in accordance with all requirements applicable to drugs not subject to section 353(b)(1) of this title, for so long as such final sunscreen order remains in effect.

(B)Upon issuance of a final sunscreen order determining that a nonprescription sunscreen active ingredient or combination of nonprescription sunscreen active ingredients is not GRASE and is misbranded, a sunscreen containing such ingredient or combination of ingredients shall not be introduced or delivered into interstate commerce, for use under the conditions described in such final sunscreen order, unless an application is approved pursuant to section 355 of this title with respect to a sunscreen containing such ingredient or combination of ingredients, or unless conditions are later established under which such ingredient or combination of ingredients is later determined to be GRASE and not misbranded under the over-the-counter drug monograph system.

(2)(A)In the event that information relevant to a nonprescription sunscreen active ingredient or combination of nonprescription sunscreen active ingredients becomes available to the Secretary after issuance of a final sunscreen order, the Secretary may amend such final sunscreen order by issuing a new proposed sunscreen order under subsection (a)(1) and following the procedures set forth in this section.

(B)Any interested person may petition the Secretary to amend a final sunscreen order under section 10.30, title 21 Code of Federal Regulations (or any successor regulations). If the Secretary grants any petition under such section, the Secretary shall initiate the process for amending a final sunscreen order by issuing a new proposed sunscreen order under subsection (a)(1) and following the procedures set forth in this section.

(C)Once the Secretary issues a new proposed sunscreen order to amend a final sunscreen order under subparagraph (A) or (B), such final sunscreen order shall remain in effect and paragraph (3) shall not apply to such final sunscreen order until the Secretary has issued a new final sunscreen order or has determined not to amend the final sunscreen order.

(3)A final sunscreen order shall be deemed to be a final order under section 355h of this title.

(f)(1)A final sunscreen order shall have the effect of authorizing solely the order requestor (or the licensees, assignees, or successors in interest of such requestor with respect to the subject of such request and listed under paragraph (5)) for a period of 18 months, to market a sunscreen ingredient under this section incorporating changes described in paragraph (2) subject to the limitations under paragraph (4), beginning on the date the requestor (or any licensees, assignees, or successors in interest of such requestor with respect to the subject of such request and listed under paragraph (5)) may lawfully market such sunscreen ingredient pursuant to the order.

(2)A change described in this paragraph is a change subject to an order specified in paragraph (1) that permits a sunscreen to contain an active sunscreen ingredient not previously incorporated in a marketed sunscreen listed in paragraph (3).

(3)The marketed sunscreen ingredients described in this paragraph are sunscreen ingredients—

(A)marketed in accordance with a final monograph for sunscreen drug products set forth at part 352 of title 21, Code of Federal Regulations (as published at 64 Fed. Reg. 27687); or

(B)marketed in accordance with a final order issued under this section.

(4)Only one 18-month period may be granted per ingredient under paragraph (1).

(5)Requestors shall submit to the Secretary at the time when a drug subject to such request is introduced or delivered for introduction into interstate commerce, a list of licensees, assignees, or successors in interest under paragraph (1).

Notes & Related Subsidiaries

Editorial Notes

Amendments

2020—Subsec. (b)(7). Pub. L. 116–136, § 3854(b)(2), designated existing provisions as subpar. (A), inserted heading, and added subpar. (B). Subsec. (e)(3). Pub. L. 116–136, § 3854(b)(1), amended par. (3) generally. Prior to amendment, par. (3) related to inclusion of ingredients that are subjects of final orders in the sunscreen monograph. Subsec. (f). Pub. L. 116–136, § 3854(b)(3), added subsec. (f).

Statutory Notes and Related Subsidiaries

Sunscreen Final Administrative Order Pub. L. 119–37, div. F, title V, § 6506(b), Nov. 12, 2025, 139 Stat. 645, provided that: “A final administrative order on nonprescription sunscreen active ingredients issued under section 3854 of the Coronavirus Aid, Relief, and Economic Security Act (Public Law 116–136; 21 U.S.C. 360fff–3 note) shall— “(1) account for historical data regarding the safety of sunscreen active ingredients that have previously been accepted for marketing in the United States; “(2) account for the role of broad spectrum sunscreens with a Sun Protection Factor of 15 or higher in effective skin cancer prevention; and “(3) incorporate the evidence and testing standards for sunscreen active ingredients detailed in section 505G(r) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355h) (as added by subsection (a)).” Review of Nonprescription Sunscreen Active Ingredients Pub. L. 116–136, div. A, title III, § 3854(a), Mar. 27, 2020, 134 Stat. 454, provided that: “(1) Applicability of section 505g for pending submissions.—“(A) In general.—A sponsor of a nonprescription sunscreen active ingredient or combination of nonprescription sunscreen active ingredients that, as of the date of enactment of this Act [Mar. 27, 2020], is subject to a proposed sunscreen order under section 586C of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360fff–3) may elect, by means of giving written notification to the Secretary of Health and Human Services within 180 calendar days of the enactment of this Act, to transition into the review of such ingredient or combination of ingredients pursuant to the process set out in section 505G of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355h], as added by section 3851 of this subtitle. “(B) Election exercised.—Upon receipt by the Secretary of Health and Human Services of a timely notification under subparagraph (A)—“(i) the proposed sunscreen order involved is deemed to be a request for an order under subsection (b) of section 505G of the Federal Food, Drug, and Cosmetic Act, as added by section 3851 of this subtitle; and “(ii) such order is deemed to have been accepted for filing under subsection (b)(6)(A)(i) of such section 505G. “(C) Election not exercised.—If a notification under subparagraph (A) is not received by the Secretary of Health and Human Services within 180 calendar days of the date of enactment of this Act, the review of the proposed sunscreen order described in subparagraph (A)—“(i) shall continue under section 586C of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360fff–3); and “(ii) shall not be eligible for review under section 505G, added by section 3851 of this subtitle. “(2) Definitions.—In this subsection, the terms ‘sponsor’, ‘nonprescription’, ‘sunscreen active ingredient’, and ‘proposed sunscreen order’ have the meanings given to those terms in section 586 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360fff).”

§360fff–3 GRASE determination