Endo: Successful culmination of litigation regarding FDA compounding policy
Endo announced the successful culmination of two litigation matters before the U.S. District Court for the District of Columbia regarding the unlawful compounding of vasopressin from bulk drug substances. In October 2017, Endo initiated a lawsuit against the U.S. FDA challenging the FDA's interim policy authorizing the bulk compounding of drugs. That policy relied on "enforcement discretion" to allow bulk compounding of vasopressin, the active ingredient in Vasostrict, which is manufactured by Endo's subsidiary Par Sterile Products. Endo's lawsuit alleged that the FDA's interim policy violated Section 503B of the Drug Quality and Security Act and other provisions of the Federal Food, Drug, and Cosmetic Act which allow bulk compounding only if FDA first makes a determination that there is a genuine "clinical need" for compounding from a particular bulk drug substance. Shortly after Endo filed its lawsuit, the FDA began to take significant steps to implement the requirements of the DQSA, and in particular issued proposed guidance regarding the statutory "clinical need" requirement which was consistent with the claims in Endo's Complaint. At FDA's and the Department of Justice's request, Endo stayed its lawsuit to allow FDA time to complete this process. FDA ultimately finalized its new guidance and issued a thorough, well-reasoned administrative decision that bulk compounders of vasopressin competing with Vasostrict could not satisfy the statutory "clinical need" requirement. Soon thereafter, a bulk compounder of vasopressin, Athenex, and two related entities, sued the FDA-also in the U.S. District Court in the District of Columbia-seeking to invalidate the FDA's decision regarding vasopressin. Endo intervened in the Athenex lawsuit to defend the case alongside the FDA and the Department of Justice. The defense was successful, with the Court concluding on August 1, 2019 that the "FDA's exclusion of vasopressin from the 'clinical need' list was not arbitrary and capricious," a decision that "forecloses [Athenex] from selling their product." The Court also denied Athenex's subsequent motion for a stay of its ruling pending appeal. Although Athenex initially appealed the Court's ruling, it recently filed a motion to withdraw that appeal. Given FDA's determination removing bulk compounded vasopressin from the market, and FDA's and Endo's success in the Athenex litigation, Endo has agreed with the FDA and the Department of Justice to voluntarily dismiss without prejudice its initial lawsuit against the FDA. That case has been stayed since February 2019, and Endo has now filed with the Court a stipulation to voluntarily dismiss the suit.