§ 360bbb–3.
(b)
Declaration of emergency or threat justifying emergency authorized use
(1)
In general
The Secretary may make a declaration that the circumstances exist justifying the authorization under this subsection for a product on the basis of—
(A)
a determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a biological, chemical, radiological, or nuclear agent or agents;
(B)
a determination by the Secretary of Defense that there is a military emergency, or a significant potential for a military emergency, involving a heightened risk to United States military forces, including personnel operating under the authority of title 10 or title 50, of attack with—
(i)
a biological, chemical, radiological, or nuclear agent or agents; or
(ii)
an agent or agents that may cause, or are otherwise associated with, an imminently life-threatening and specific risk to United States military forces;
(C)
a determination by the Secretary that there is a public health emergency, or a significant potential for a public health emergency, that affects, or has a significant potential to affect, national security or the health and security of United States citizens living abroad, and that involves a biological, chemical, radiological, or nuclear agent or agents, or a disease or condition that may be attributable to such agent or agents; or
(D)
the identification of a material threat pursuant to section 319F–2 of the Public Health Service Act [
42 U.S.C. 247d–6b] sufficient to affect national security or the health and security of United States citizens living abroad.
(2)
Termination of declaration
(A)
In general
A declaration under this subsection shall terminate upon the earlier of—
(i)
a determination by the Secretary, in consultation as appropriate with the Secretary of Homeland Security or the Secretary of Defense, that the circumstances described in paragraph (1) have ceased to exist; or
(ii)
a change in the approval status of the product such that the circumstances described in subsection (a)(2) have ceased to exist.
(B)
Disposition of product
(3)
Advance notice of termination
The Secretary shall provide advance notice that a declaration under this subsection will be terminated. The period of advance notice shall be a period reasonably determined to provide—
(A)
in the case of an unapproved product, a sufficient period for disposition of the product, including the return of such product (except such quantities of product as are necessary to provide for continued use consistent with subsection (f)(2)) to the manufacturer (in the case of a manufacturer that chooses to have such product returned); and
(B)
in the case of an unapproved use of an approved product, a sufficient period for the disposition of any labeling, or any information under subsection (e)(2)(B)(ii), as the case may be, that was provided with respect to the emergency use involved.
(5)
Explanation by Secretary
(c)
Criteria for issuance of authorization
(1)
that an agent referred to in a declaration under subsection (b) can cause a serious or life-threatening disease or condition;
(2)
that, based on the totality of scientific evidence available to the Secretary, including data from adequate and well-controlled clinical trials, if available, it is reasonable to believe that—
(A)
the product may be effective in diagnosing, treating, or preventing—
(i)
such disease or condition; or
(ii)
a serious or life-threatening disease or condition caused by a product authorized under this section, approved or cleared under this chapter, or licensed under section 351 of the Public Health Service Act [
42 U.S.C. 262], for diagnosing, treating, or preventing such a disease or condition caused by such an agent; and
(B)
the known and potential benefits of the product, when used to diagnose, prevent, or treat such disease or condition, outweigh the known and potential risks of the product, taking into consideration the material threat posed by the agent or agents identified in a declaration under subsection (b)(1)(D), if applicable;
(3)
that there is no adequate, approved, and available alternative to the product for diagnosing, preventing, or treating such disease or condition;
(4)
in the case of a determination described in subsection (b)(1)(B)(ii), that the request for emergency use is made by the Secretary of Defense; and
(5)
that such other criteria as the Secretary may by regulation prescribe are satisfied.
(d)
Scope of authorization
An authorization of a product under this section shall state—
(1)
each disease or condition that the product may be used to diagnose, prevent, or treat within the scope of the authorization;
(2)
the Secretary’s conclusions, made under subsection (c)(2)(B), that the known and potential benefits of the product, when used to diagnose, prevent, or treat such disease or condition, outweigh the known and potential risks of the product; and
(3)
the Secretary’s conclusions, made under subsection (c), concerning the safety and potential effectiveness of the product in diagnosing, preventing, or treating such diseases or conditions, including, to the extent practicable given the circumstances of the emergency, an assessment of the available scientific evidence.
(e)
Conditions of authorization
(1)
Unapproved product
(A)
Required conditions
With respect to the emergency use of an unapproved product, the Secretary, to the extent practicable given the applicable circumstances described in subsection (b)(1), shall, for a person who carries out any activity for which the authorization is issued, establish such conditions on an authorization under this section as the Secretary finds necessary or appropriate to protect the public health, including the following:
(i)
Appropriate conditions designed to ensure that health care professionals administering the product are informed—
(I)
that the Secretary has authorized the emergency use of the product;
(II)
of the significant known and potential benefits and risks of the emergency use of the product, and of the extent to which such benefits and risks are unknown; and
(III)
of the alternatives to the product that are available, and of their benefits and risks.
(ii)
Appropriate conditions designed to ensure that individuals to whom the product is administered are informed—
(I)
that the Secretary has authorized the emergency use of the product;
(II)
of the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown; and
(III)
of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.
(iii)
Appropriate conditions for the monitoring and reporting of adverse events associated with the emergency use of the product.
(iv)
For manufacturers of the product, appropriate conditions concerning recordkeeping and reporting, including records access by the Secretary, with respect to the emergency use of the product.
(B)
Authority for additional conditions
With respect to the emergency use of an unapproved product, the Secretary may, for a person who carries out any activity for which the authorization is issued, establish such conditions on an authorization under this section as the Secretary finds necessary or appropriate to protect the public health, including the following:
(i)
Appropriate conditions on which entities may distribute the product with respect to the emergency use of the product (including limitation to distribution by government entities), and on how distribution is to be performed.
(ii)
Appropriate conditions on who may administer the product with respect to the emergency use of the product, and on the categories of individuals to whom, and the circumstances under which, the product may be administered with respect to such use.
(iii)
Appropriate conditions with respect to collection and analysis of information concerning the safety and effectiveness of the product with respect to the use of such product during the period when the authorization is in effect and a reasonable time following such period.
(iv)
For persons other than manufacturers of the product, appropriate conditions concerning recordkeeping and reporting, including records access by the Secretary, with respect to the emergency use of the product.
(2)
Unapproved use
With respect to the emergency use of a product that is an unapproved use of an approved product:
(A)
For a person who carries out any activity for which the authorization is issued, the Secretary shall, to the extent practicable given the applicable circumstances described in subsection (b)(1), establish conditions described in clauses (i) and (ii) of paragraph (1)(A), and may establish conditions described in clauses (iii) and (iv) of such paragraph or in paragraph (1)(B).
(B)
(i)
If the authorization under this section regarding the emergency use authorizes a change in the labeling of the product, but the manufacturer of the product chooses not to make such change, such authorization may not authorize distributors of the product or any other person to alter or obscure the labeling provided by the manufacturer, except as provided in
section 360bbb–3a of this title with respect to authorized changes to the product expiration date.
(ii)
In the circumstances described in clause (i), for a person who does not manufacture the product and who chooses to act under this clause, an authorization under this section regarding the emergency use shall, to the extent practicable given the circumstances of the emergency, authorize such person to provide appropriate information with respect to such product in addition to the labeling provided by the manufacturer, subject to compliance with clause (i). While the authorization under this section is effective, such additional information shall not be considered labeling for purposes of
section 352 of this title.
(C)
In establishing conditions under this paragraph with respect to the distribution and administration of the product for the unapproved use, the Secretary shall not impose conditions that would restrict distribution or administration of the product when distributed or administered for the approved use.
(3)
Good manufacturing practice; prescription
With respect to the emergency use of a product for which an authorization under this section is issued (whether an unapproved product or an unapproved use of an approved product), the Secretary may waive or limit, to the extent appropriate given the applicable circumstances described in subsection (b)(1)—
(A)
requirements regarding current good manufacturing practice otherwise applicable to the manufacture, processing, packing, or holding of products subject to regulation under this chapter, including such requirements established under section 351 or 360j(f)(1) of this title, and including relevant conditions prescribed with respect to the product by an order under
section 360j(f)(2) of this title;
(4)
Advertising
The Secretary may establish conditions on advertisements and other promotional descriptive printed matter that relate to the emergency use of a product for which an authorization under this section is issued (whether an unapproved product or an unapproved use of an approved product), including, as appropriate—
(A)
with respect to drugs and biological products, requirements applicable to prescription drugs pursuant to
section 352(n) of this title; or
(j)
Rules of construction
The following applies with respect to this section:
(1)
Nothing in this section impairs the authority of the President as Commander in Chief of the Armed Forces of the United States under article II, section 2 of the United States Constitution.
(2)
Nothing in this section impairs the authority of the Secretary of Defense with respect to the Department of Defense, including the armed forces, under other provisions of Federal law.
(3)
Nothing in this section (including any exercise of authority by a manufacturer under subsection (e)(2)) impairs the authority of the United States to use or manage quantities of a product that are owned or controlled by the United States (including quantities in the stockpile maintained under section 319F–2 of the Public Health Service Act [
42 U.S.C. 247d–6b]).
(4)
Nothing in this section shall be construed as authorizing a delay in the review or other consideration by the Secretary of any application or submission pending before the Food and Drug Administration for a product for which an authorization under this section is issued.
([June 25, 1938, ch. 675, § 564], as added [Pub. L. 108–136, div. A, title XVI, § 1603(a)], Nov. 24, 2003, [117 Stat. 1684]; amended [Pub. L. 108–276, § 4(a)], July 21, 2004, [118 Stat. 853]; [Pub. L. 113–5, title III, § 302(a)], Mar. 13, 2013, [127 Stat. 179]; [Pub. L. 114–255, div. A, title III, § 3088(a)], Dec. 13, 2016, [130 Stat. 1148]; [Pub. L. 115–92, § 1(a)], Dec. 12, 2017, [131 Stat. 2023]; [Pub. L. 117–328, div. FF, title II, § 2504], Dec. 29, 2022, [136 Stat. 5802].)