§353a — Title 21 Food and Drugs | U.S. Code

Summary

Allows certain compounded drugs to be treated differently from some federal drug rules when they are made for a specific, identified patient and meet rules below. Only a licensed pharmacist working in a state-licensed pharmacy or federal facility, or a licensed physician, may compound these products. Pharmacists or physicians may also make small amounts ahead of a prescription if they have a history of getting valid prescriptions for that patient or from the prescriber in an established relationship. The drug must use bulk drug ingredients that meet United States Pharmacopeia/National Formulary standards, are parts of FDA‑approved drugs, or are on a federal list of allowed substances. Those ingredients must come from registered manufacturers and have valid certificates of analysis. Other ingredients must meet USP/NF standards. Compounding cannot use drugs removed from the market for safety or effectiveness, cannot regularly make copies of commercial drugs in large amounts (unless the prescriber changes it for a meaningful patient benefit), and cannot be drugs the federal agency says are too hard or unsafe to compound. If the pharmacy ships out of state, the state must have an agreement with the federal agency about interstate distribution, or the out‑of‑state shipments must be no more than 5 percent of the total prescriptions. The federal agency must write rules and, before some rules, consult an advisory panel with pharmacy, physician, consumer, and other experts and the United States Pharmacopeia. Compounded positron emission tomography drugs and radiopharmaceuticals are excluded. “Compounding” does not include mixing or reconstituting exactly as the drug maker’s approved labeling.

Title 21, §353a

Food and Drugs — Source: USLM XML via OLRC

(a)section 351(a)(2)(B), 352(f)(1), and 355 of this title shall not apply to a drug product if the drug product is compounded for an identified individual patient based on the receipt of a valid prescription order or a notation, approved by the prescribing practitioner, on the prescription order that a compounded product is necessary for the identified patient, if the drug product meets the requirements of this section, and if the compounding—

(1)is by—

(A)a licensed pharmacist in a State licensed pharmacy or a Federal facility, or

(B)a licensed physician,

(2)(A)is by a licensed pharmacist or licensed physician in limited quantities before the receipt of a valid prescription order for such individual patient; and

(B)is based on a history of the licensed pharmacist or licensed physician receiving valid prescription orders for the compounding of the drug product, which orders have been generated solely within an established relationship between—

(i)the licensed pharmacist or licensed physician; and

(ii)(I)such individual patient for whom the prescription order will be provided; or

(II)the physician or other licensed practitioner who will write such prescription order.

(b)(1)A drug product may be compounded under subsection (a) if the licensed pharmacist or licensed physician—

(A)compounds the drug product using bulk drug substances, as defined in regulations of the Secretary published at section 207.3(a)(4) of title 21 of the Code of Federal Regulations—

(i)that—

(I)comply with the standards of an applicable United States Pharmacopoeia or National Formulary monograph, if a monograph exists, and the United States Pharmacopoeia chapter on pharmacy compounding;

(II)if such a monograph does not exist, are drug substances that are components of drugs approved by the Secretary; or

(III)if such a monograph does not exist and the drug substance is not a component of a drug approved by the Secretary, that appear on a list developed by the Secretary through regulations issued by the Secretary under subsection (c);

(ii)that are manufactured by an establishment that is registered under section 360 of this title (including a foreign establishment that is registered under section 360(i) of this title); and

(iii)that are accompanied by valid certificates of analysis for each bulk drug substance;

(B)compounds the drug product using ingredients (other than bulk drug substances) that comply with the standards of an applicable United States Pharmacopoeia or National Formulary monograph, if a monograph exists, and the United States Pharmacopoeia chapter on pharmacy compounding;

(C)does not compound a drug product that appears on a list published by the Secretary in the Federal Register of drug products that have been withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective; and

(D)does not compound regularly or in inordinate amounts (as defined by the Secretary) any drug products that are essentially copies of a commercially available drug product.

(2)For purposes of paragraph (1)(D), the term “essentially a copy of a commercially available drug product” does not include a drug product in which there is a change, made for an identified individual patient, which produces for that patient a significant difference, as determined by the prescribing practitioner, between the compounded drug and the comparable commercially available drug product.

(3)A drug product may be compounded under subsection (a) only if—

(A)such drug product is not a drug product identified by the Secretary by regulation as a drug product that presents demonstrable difficulties for compounding that reasonably demonstrate an adverse effect on the safety or effectiveness of that drug product; and

(B)such drug product is compounded in a State—

(i)that has entered into a memorandum of understanding with the Secretary which addresses the distribution of inordinate amounts of compounded drug products interstate and provides for appropriate investigation by a State agency of complaints relating to compounded drug products distributed outside such State; or

(ii)that has not entered into the memorandum of understanding described in clause (i) and the licensed pharmacist, licensed pharmacy, or licensed physician distributes (or causes to be distributed) compounded drug products out of the State in which they are compounded in quantities that do not exceed 5 percent of the total prescription orders dispensed or distributed by such pharmacy or physician.

(c)(1)The Secretary shall issue regulations to implement this section. Before issuing regulations to implement subsections (b)(1)(A)(i)(III), (b)(1)(C), or (b)(3)(A), the Secretary shall convene and consult an advisory committee on compounding unless the Secretary determines that the issuance of such regulations before consultation is necessary to protect the public health. The advisory committee shall include representatives from the National Association of Boards of Pharmacy, the United States Pharmacopoeia, pharmacy, physician, and consumer organizations, and other experts selected by the Secretary.

(2)The Secretary, in consultation with the United States Pharmacopoeia Convention, Incorporated, shall promulgate regulations identifying drug substances that may be used in compounding under subsection (b)(1)(A)(i)(III) for which a monograph does not exist or which are not components of drug products approved by the Secretary. The Secretary shall include in the regulation the criteria for such substances, which shall include historical use, reports in peer reviewed medical literature, or other criteria the Secretary may identify.

(d)This section shall not apply to—

(1)compounded positron emission tomography drugs as defined in section 321(ii) of this title; or

(2)radiopharmaceuticals.

(e)As used in this section, the term “compounding” does not include mixing, reconstituting, or other such acts that are performed in accordance with directions contained in approved labeling provided by the product’s manufacturer and other manufacturer directions consistent with that labeling.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2013—Subsec. (a). Pub. L. 113–54, § 106(a)(1), struck out “unsolicited” before “receipt of a valid prescription” in introductory provisions. Subsec. (b)(1)(A)(i)(III). Pub. L. 113–54, § 106(a)(4), substituted “subsection (c)” for “subsection (d)”. Subsecs. (c) to (f). Pub. L. 113–54, § 106(a)(2), (3), redesignated subsecs. (d) to (f) as (c) to (e), respectively, and struck out former subsec. (c). Prior to amendment, subsec. (c) read as follows: “A drug may be compounded under subsection (a) of this section only if the pharmacy, licensed pharmacist, or licensed physician does not advertise or promote the compounding of any particular drug, class of drug, or type of drug. The pharmacy, licensed pharmacist, or licensed physician may advertise and promote the compounding service provided by the licensed pharmacist or licensed physician.”

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 105–115, title I, § 127(b), Nov. 21, 1997, 111 Stat. 2330, provided that: “section 503A of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 353a], added by subsection (a), shall take effect upon the expiration of the 1-year period beginning on the date of the enactment of this Act [Nov. 21, 1997].”

§353a Pharmacy Compounding