Dive Deeper Into the Conversation
Catch our interview with Todd Harrison, co-chair of the FDA practice group at Venable LLP, to unpack what the bill actually does, and where it falls short.
The Dietary Supplement Innovation Act, introduced by Rep. Harshbarger, would cap indefinite preclusion, require science-based review standards, and open FDA warnings to court challenge.
Representative Diana Harshbarger on September 10 introduced the Dietary Supplement Innovation Act, legislation intended to modernize the FDA's drug preclusion provision.1 According to a news release from Harshbarger, the legislation would establish regulatory certainty, protect pharmaceutical innovation incentives, and support access to dietary supplements for consumers. It also notes that manufacturers have faced uncertainty when investigational drug filings remain undisclosed and preclusion persists indefinitely even after the underlying pharmaceutical research has been dropped.
“For decades, this broken drug preclusion process has allowed Washington bureaucrats to threaten lawful dietary supplements that have safely been purchased over the counter for years, stifling innovation and denying Americans access to products they already trust,” Representative Harshbarger stated. “My bill delivers the regulatory certainty manufacturers need to innovate and invest with confidence, while establishing transparency and predictability within the drug preclusion framework and preserving consumer access to dietary supplements.”
Catch our interview with Todd Harrison, co-chair of the FDA practice group at Venable LLP, to unpack what the bill actually does, and where it falls short.
The bill's provisions focus on 5 main actions. It would protect ingredients with a history of prior marketing, let preclusion lapse after roughly seven years of inactive drug development, give FDA discretion to authorize otherwise-precluded ingredients, require the agency to weigh factors like dosage and route of administration when determining if a drug and supplement contain the same “article,” and allow manufacturers to challenge FDA preclusion claims in court.
Bill text and a summary one-pager are available through Representative Harshbarger's congressional website.
Trade groups responded favorably and were included in the news release. Steve Mister, president and CEO of the Council for Responsible Nutrition (CRN), commended the introduction of the legislation and said the bill brings balance to a long-standing issue. “This bill doesn't weaken FDA or undermine pharmaceutical innovation,” Mister explained. “Instead, it restores the balance Congress intended when it enacted DSHEA by creating evenhanded, transparent, or predictable rules that allow both industries to innovate while protecting consumer access to safe dietary supplements.”
Scott Melville, president and CEO of the Consumer Healthcare Products Association (CHPA), highlighted the effects of the bill. “We applaud Representative Harshbarger for introducing this important legislation, which modernizes an outdated provision of law, provides much-needed regulatory certainty, and helps ensure consumer access keeps pace with innovation,” he stated.
In a separate statement, the American Herbal Products Association (AHPA) commended the introduction of the Dietary Supplement Innovation Act.2 “Botanical dietary supplement innovation depends on clearly defined pathways that allow safe herbs and natural products to reach consumers,” stated Graham Rigby, AHPA President and CEO. “Representative Harshbarger's legislation would help restore the balance Congress intended under DSHEA and better ensure that drug development does not unnecessarily foreclose dietary supplement innovation. AHPA applauds Representative Harshbarger for her leadership and urges Congress to advance this important legislation as a key plank of modernizing the Federal Food, Drug, and Cosmetic Act's robust dietary supplement provisions.”
The preclusion issue predates this bill. Speaking at SupplySide Connect New Jersey earlier this year,
Drug preclusion also came up in comments a coalition of associations submitted to FDA following the agency's
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