On March 16, 2020, FDA issued its Policy for Diagnostic Tests for Coronavirus Disease-2019 during the Public Health Emergency (the “Guidance”). The purpose of the Guidance is to expedite the availability of novel coronavirus (SARS-CoV-2) diagnostic tests in view of the current public health emergency. The Guidance contains policies regarding (i) laboratories’ development and use of certain tests prior to or without an Emergency Use Authorization (EUA), (ii) commercial manufacturers’ development and distribution of certain tests prior to an EUA, and (iii) development, use, and distribution of serological tests without an EUA.
First, regarding laboratory tests, the Guidance provides two policies: one eventually requires an EUA submission and the other does not. Under the first prong, FDA has indicated that it will not object to a laboratory’s use of SARS-CoV-2 diagnostic tests (i) that occurs after validation and notification to the agency, (ii) for a reasonable time (about 15 business days), (iii) while preparing an EUA request, (iv) provided that the laboratory is certified and meets certain regulatory requirements under Clinical Laboratory Improvement Amendments (CLIA). However, if FDA, upon review of the EUA request, identifies a significant problem that cannot be addressed in a timely manner, the laboratory may have to stop using the test and issue test reports indicating that prior tests may be unreliable.
Under the second prong, each state may authorize laboratories within its territory to develop and use SARS-CoV-2 diagnostic tests without notifying FDA of test validation and without engaging in the EUA process.
Second, FDA has indicated that it will not object to a commercial manufacturer’s distribution of SARS-CoV-2 diagnostic kits (i) after validation and notification to the agency, (ii) for a reasonable time (about 15 business days), (iii) while preparing an EUA request, (iv) provided that the manufacturer posts instructions for use and data regarding performance of the kit on its website. However, it should be noted that the manufacturer may have to suspend distribution and recall its products if, upon review of the EUA request, FDA identifies a significant problem that cannot be addressed in a timely manner.
Third, acknowledging the relative simplicity of serological tests, FDA has indicated that it will not object to a laboratory’s use, and a commercial manufacturer’s distribution of serological tests or kits for SARS-CoV-2 that occur after validation and notification to the agency, provided that certain information listed in section IV(D) of the Guidance is included in the test report (e.g., that the test is not FDA-reviewed).
Lastly, it may be worth noting some general points. First, the policies in the Guidance do not apply to at-home testing. Second, where validation is required, FDA recommends the minimum testing described in section V of the Guidance. Finally, FDA recommends including a general statement in the test report that FDA review is pending, whenever that is the case.
In sum, the policies set out in the Guidance allow laboratories and commercial manufacturers, under certain conditions, to start using or distributing diagnostic tests or kits for the novel coronavirus prior to or even without an EUA. In addition to the EUA process which is already an expedited authorization process, the new policies will further accelerate distribution and use of the tests.
For further information about Coronavirus preparedness please also visit the Morrison & Foerster Coronavirus Resource Center.