An insight into digital health in Indian Pharma. Prepared in association with Nishith Desai & Associates, a leading law firm in India, this is an extract from The Pharma Legal Handbook: India, available to purchase here for GBP 119.

151. Is the term ‘digital health’ defined in your jurisdiction? If no, how is the term generally understood?

The term digital health is not specifically defined in India. It is generally understood to include tools and services that use information and communication technologies (ICT) for purposes connected to health. These purposes may include improving accuracy of diagnosis, monitoring chronic diseases more closely and improving treatment outcomes for patients.

 

 

152. What digital health tools are specifically recognized and regulated in your jurisdictions?

Telemedicine is the only digital health tool specifically recognized and regulated. The government is currently in the process of regulating online pharmacies as well.

 

153. What is the regulatory framework applicable to the above-mentioned digital health tools? Who are the regulators with jurisdiction over these areas?

The Telemedicine Practice Guidelines (“TPG”) regulate telemedicine in India. The TPG is administered an enforced by the National Medical Commission (“NMC”) – the apex regulatory body governing medical education and the medical profession in India.

It should be noted that the TPG is only binding on healthcare practitioners licensed to practice in India. This is because the TPG are framed as part of the code of ethics to be followed by healthcare practitioners when practising medicine.

 

154. How is health data regulated in your jurisdiction? Is there a separately regulatory framework governing health data?

Health data is regulated under India’s data protection and privacy legislation, the Information Technology Act, 2000 (“IT Act”) and the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“SPDI Rules”) framed thereunder. India does not have a separate regulatory framework governing health data at the moment.

Under the SPDI Rules, information relating the physical, physiological or mental health condition, and medical records and history of a individual are considered to be sensitive personal data or information (“SPDI”). Accordingly, the collector of this information is required to undertake certain compliances during the collection and processing of data to safeguard the privacy of the provider of information.

You may note that India is presently in the process of putting in place a new data protection and privacy framework. See response to question 157 for more details.

 

155. What are the obligations of entities collecting, storing, or otherwise processing health data in your jurisdiction?

The collector of information is required to adhere to the following broad compliances under the SPDI Rules.

1. Publish a terms of use and privacy policy on the website which is available to the provider of information;
2. Obtain express consent from the provider of the information regarding the purpose of usage before such information is collected;
3. Only collect information which is necessary for undertaking the function or activity of the body corporate;
4. Take reasonable steps to inform the provider of information of the fact for which the information is being collected, the purpose for which the information is being collected, the intended recipients of the information and the name and address of the agency that will collect and/or retain the information;
5. Provide an option at the time of collecting information to not provide the data or information;
6. Use the information only for the purpose for which it has been collected;
7. Not retain the information for longer than is required for the purpose for which the information may be lawfully used or longer than required by law;
8. Follow reasonable security practices and procedures including documented information security programme and information security policies commensurate with the information assets being protected. Body corporates implementing the standard ISO 27001 on “Information Technology – Security Techniques – Information Security Management System – Requirements” are deemed to have put in place reasonable security practices provided such security practices are duly audited by an independent, recognised auditor once a year or as and when the body corporate undertakes a significant upgradation of its process and computer resource. Nonetheless, a separate security standard may be agreed to upon by the provider of information and the collector of information.
9. Appoint a grievance officer to address any discrepancies and grievances of the provider of information with respect to processing of information in a time bound manner.

 

156. Can health data be transferred abroad in your jurisdiction? What restrictions (if any) are applicable to cross-border transfer of health data?

Yes, health data may be transferred outside of India provided the following conditions are fulfilled:

1. The transferor ensures that the receiver of the information implements the same level of data protection in respect of the data as the transferor; and
2. The transfer is necessary for the performance of a lawful contract between the body corporate and the provider of information or where the provider of the information has consented to the transfer.

 

157. Are there proposals for reform or significant change to digital health regulation? If yes, when are they likely to come into force?

India is presently in the process of finalising a new data protection and privacy legislation. The Personal Data Protection Bill, 2019 was introduced in the Indian Parliament in December 2019. Subsequently, the bill was referred to a Joint Parliamentary Committee under the Chairpersonship of Meenakshi Lekhi for the committee to examine the bill and provide recommendations. The committee has reportedly made extensive amendments to the bill. The report of the committee is likely to be released during the Monsoon Session of the Indian Parliament in 2021.

 

 

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Click the following links to read more legal articles from India:

1. Regulatory Pricing and Reimbursement Overview
2. Preclinical and Clinical Trial Requirements
3. Marketing, Manufacturing, Packaging & Labeling, Advertising
4. Traditional and OTC Products
5. Product Liability
6. Patents & Trademarks
7. Regulatory Reforms
8. Cannabinoid Drugs, Medicinal Cannabis and Opioid Drugs
9. Orphan Drugs and Rare Diseases
10. Localization
11. Biosimilars and Biologics
12. Medical Devices
13. Digital Health

 

Also from this Legal Handbook

An insight into medical devices in India. Prepared in association with Nishith Desai & Associates, a leading law firm in India, this is an extract from The Pharma Legal Handbook: India, available to purchase here for GBP 119.

 

1. Who are the regulatory authorities governing medical devices in your jurisdiction?

The following regulatory authorities have jurisdiction over medical devices in India.

1. The Drugs Controller General of India (“DCGI”)
2. The Central Drugs Standard Control Organisation (“CDSCO”)
3. State drug licensing authorities (also referred to as the state licensing authorities or SLAs).
4. Gazetted officers authorised by the state governments to enforce drug advertising regulations.
5. National Pharmaceutical Pricing Authority (“NPPA”).
6. Department of Pharmaceuticals (“DoP”).

 

2. What is the regulatory framework governing the authorization, manufacture, import, pricing, sale, and advertisement of medical devices in your jurisdiction? Please provide a brief overview of the same.

The following legislations regulate medical devices in India.

Authorisation, Manufacture, Import and Sale

The Medical Device Rules, 2017 (“MDR”) is the primary legislation regulating authorisation, manufacture, import and sale of medical devices in India. The MDR is a set of rules framed under the Drugs and Cosmetics Act, 1940 (“D&C Act”) – India’s primary drug and medical device control legislation. The D&C Act (including the MDR) is enforced by the CDSCO at the central level and the SLAs at the state level.

The MDR is only applicable to the categories of devices notified for regulation under the MDR by the Ministry of Health and Family Welfare. 15 categories of devices were regulated under the MDR at the time of enactment on January 01, 2018. Since then, 14 additional categories have been notified to be regulated in a phased manner. The MDR classifies medical devices into four classes as Class A (low risk), Class B (low-moderate risk), Class C (moderate-high risk) and Class D (high risk).

On 11 February 2020, the Ministry of Health and Family Welfare published a notification (which came into force on 1 April 2020) effectively bringing all medical devices within the scope of the MDR (“Definition Notification”). Rather than notifying each individual medical device, the Definition Notification includes an expansive and catch-all definition of medical devices.

The Definition Notification defines a medical device as follows.

“Any device, including an instrument, apparatus, appliance, implant, material or other article, whether used alone or in combination, including a software or an accessory, intended by its manufacturer to be used specially for human beings or animals which does not achieve its primary intended action by pharmacological, immunological or metabolic means, but which can be assisted in its intended function by such means, for one or more of the following purposes:

1. Diagnosis, prevention, monitoring, treatment or alleviation of any disease or disorder.
2. Diagnosis, monitoring, treatment, alleviation of, or assistance for, any injury or disability.
3. Investigation, replacement, modification or support of the anatomy or of a physiological process.
4. Supporting or sustaining life.
5. Disinfection of medical devices.
6. Control of conception.

To allow manufacturers/importers of newly notified medical devices sufficient time to ensure compliance with the MDR, the Health Ministry introduced a temporary exemption from compliance requirements under the MDR. The exemption commenced on February 11, 2020 and extends for a period of 30 months for Class A and B devices and 42 months for Class C and D devices (“Exemption Notification”). The exemption commenced on 11 February 2020 and is conditional on manufacturers/importers registering their devices on the Online System for Medical Devices established by the CDSCO for this purpose.

 

Advertising and Promotion

The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (“DMRA”) regulates the advertisement and promotion of medical devices to consumers and healthcare practitioners.

The DMRA prohibits the advertisement of any medicinal product (including medical devices) in a way that suggests, or is calculated to lead to the use of that device for the:

1. Procurement of miscarriage;
2. Prevention of conception for women;
3. Correction of menstrual disorders;
4. Maintenance or improvement of sexual pleasure; and
5. Diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the Schedule to the DMRA (“Scheduled Disorders”).

The restrictions under the DMRA originally applied only to drugs, but the DMRA was later extended through judicial decisions to include medical devices as well. Nonetheless, advertisements of medical devices to HCPs on a confidential basis are permitted under the DMRA.

The DMRA also does not prohibit a medical device company from advertising its brand name publicly, provided the advertisement does not make any reference to a drug or medical device that can treat, diagnose, mitigate, cure a Scheduled Disorder.

Further, the Uniform Code of Pharmaceutical Marketing Practices (“UCPMP”) – a voluntary set of guidelines framed by the DoP – regulates the interactions of pharmaceutical and medical device companies with healthcare practitioners. The UCPMP broadly provides guidance on the information to be contained in promotional material and the nature of interaction and engagements between medical device companies and healthcare practitioners.

Separately, regulations generally applicable to advertisements in India should also be applicable to medical device advertisements. Advertising in India is self-regulated as there is no central authority to monitor or approve advertisements. The Advertising Standards Council of India (“ASCI”), a non-profit organizations comprising media, advertising agencies, advertisers, has published a code regulating the publishing of advertisements in India. The ASCI Code applies to advertisements relating to medical devices as well. The ASCI Code broadly requires that advertisements contain fair, true and honest representations and not mislead consumers.

India also has medium specific guidance regulating advertisements. For instance, advertisements broadcast over cable television networks are regulated under the Cable Television Network Rules, 1994 while advertisements published online are regulated under the Information Technology Act, 2000.

 

Pricing

The Drugs (Prices Control) Order, 2013 (“DPCO”) regulates the prices of all drugs and notified medical devices in India.

Under the DPCO, prices of medical devices are regulated in two categories:

1. Medical devices specified in the National List of Essential Medicines/schedule to the DPCO (“Scheduled Formulations”); and
2. Other medical devices (“Non-scheduled Formulations”).

The ceiling prices of Scheduled Formulations is fixed by the NPPA. So far, only cardiac stents and knee implant devices are considered to be Scheduled Formulations. All other medical devices are Non-scheduled Formulations.

The prices of Non-scheduled Formulations, though not specifically fixed are controlled indirectly. Manufacturers or importers of Non-scheduled Formulations are restricted from increasing the price of the product by more than 10% over any given 12-month period.

As mentioned above, all medical devices in India are regulated from April 01, 2020 and are consequently subject to price control since then. The Exemption Period under the MDR does not apply to price control as the prices of medical devices are controlled under a different regulation than the MDR.

 

3. How are medical devices defined in your jurisdiction? Is software (whether standalone or part of a medical device) considered to be a medical device?

Please see the response to question 2 for the definition of medical device.

Further, both embedded and standalone software is considered to be a medical device in India. Embedded software i.e. software which drives of influences a device is regulated in the same manner as the medical device of which it forms a part. Standalone software came under regulation by way of the Definition Notification.

 

4. What is the process for obtaining approval to market a medical device? Are approvals granted by foreign regulators recognized in your jurisdiction?

Approval Process

Investigational medical devices and new in-vitro medical devices are required to undergo local clinical investigation and clinical performance evaluation respectively for obtaining approval to market the medical device in India.

The MDR defines an investigational medical device as a device which is the first of its kind to be approved in India. Devices previously approved in India, but which is sought to be approved for claims of new intended use, new population, new material or design change is also considered to be an investigational medical device. A new in-vitro diagnostic device is an in-vitro device which has not been previously approved in India and is being tested to establish its performance for relevant analyte or other related parameter.

Following the conclusion of the clinical investigation or the clinical performance evaluation, any resident Indian entity may apply to the CDSCO for marketing authorisation.

 

Approvals by Foreign Regulators

Approvals granted by foreign regulators are not per se recognised in India. However, devices which are approved and have been marketed in either Uni-ted Kingdom, United States, Japan, Australia or Canada may not be required to undergo clinical investigation prior to being marketed in India if all of the following conditions are fulfilled.

1. The device is being marketed in the above-mentioned countries for a period of at least two years;
2. The CDSCO is satisfied with the data on safety, performance and pharmacovigilance of the device;
3. There is no evidence or theoretical possibility, on the basis of existing knowledge, of any difference in the behavior and performance of the device in Indian population; and
4. The applicant has given an undertaking in writing to conduct post marketing clinical investigation with the objective of establishing the safety and performance of such investigational medical device as per protocol approved by the CDSCO.

 

 

5. What licenses/approvals are required to manufacture, import or sell medical devices? Can medical devices be sold directly to consumers?

The following licenses/approvals to manufacture, import or sell medical devices in India.

Manufacture

A license to manufacture medical devices should be obtained in respect of each manufacturing facility. The application for the manufacturing should be made to the SLA in case of Class A and B devices and the CDSCO in case of Class C and D devices. Manufacturing facilities are required to adhere to the Quality Management System specified in the Fifth Schedule of the MDR as a pre-requisite to grant of a manufacturing license.

The manufacturing facility will be inspected by a body authorised under the MDR to carry out inspections in case of Class B devices. The inspection will be carried out by the CDSCO in case of Class C and D devices. There is no requirement for prior inspection in case of Class A devices.

Following the inspection and review of documents, the SLA (in case of Class A and B devices) or the CDSCO (in case of Class C and D devices) may grant a manufacturing license to the applicant.

Import

An import license is required to carry out the import of medical devices into India. An application for import license should be made to the CDSCO. The import license is specific to medical devices manufactured at the facilities listed on the import license.

The importer should hold either a manufacturing license or a license to sell drugs by way of wholesale as a pre-requisite to applying for an import license.

Sale

The provisions for sale of drugs under the Drugs and Cosmetics Rules, 1945 (“D&C Rules”) – a set of rules framed under the D&C Act to regulate the clinical trials, manufacture, import and sale of drugs – regulate the sale of medical devices. The D&C Rules require sellers of medical devices to obtain separate licenses depending on whether the medical device is sold on a wholesale or retail basis.

Sale to Consumers

Medical devices may be sold directly to consumers. The conditions listed on the manufacturing license or import license regulate whether the specific medical device may be sold directly to consumers. Generally, consumer facing medical devices such as glucometers, thermometers etc. may be sold directly to consumers.

 

6. What are the standards required to be adhered to for manufacturers/importers of medical devices?

The MDR stipulates that medical devices adhere to standards prescribed in respect of the specific medical device by the Bureau of Indian Standards (“BIS”) – India’s national standards body – or those notified by Ministry of Health and Family Welfare. In the absence of such standards, the device should conform to standards laid down by the International Standards Organisation (“ISO”) or the International Electrotechnical Commission (“IEC”). If ISO or IEC standards are also not available, the device may conform to the validated manufacturer’s standards.

Further, under the Exemption Notification, the person registering the device on the Online System for Medical Devices is required to upload a certificate of compliance with respect to ISO 13485 standard accredited by National Accreditation Board for Certification Bodies or International Accreditation Forum in respect of such medical device. Therefore, medical devices which have come under the MDR by way of the Definition Notification are required to adhere to the ISO 13485.

 

7. What acts of non-compliance are specifically provided for under the regulatory framework? What is the range of penalties in case of such non-compliance?

Please refer to chapter about Regulatory, Pricing and Reimbursement Overview, Question 9 for penalties for non-compliance under the D&C Act.

 

8. What are the remedies available to patients in case of harm/injury caused due to medical devices? What is the potential range of compensation/penalty in case of such harm/injury?

The following remedies are available to consumers in the event of harm/injury arising out of a medical device.

Product Liability Action

The patient may initiate a product liability action against the medical device manufacturer, seller or product service provider under India’s consumer protection legislation, the Consumer Protection Act, 2019 (“CPA”). The CPA provides for specific instances in which the manufacturer, seller or product service provider in respect of the medical device. In the event the claim is successful, the product manufacturer, product seller or product service provider will be required to pay compensation to the patient.

Complaint to Drug Regulator

The patient may also approach the drug regulator in the event they believe the medical device was not of standard quality or counterfeit. In such cases, the drug regulator will investigate the matter and proceed against the medical device manufacturer as per the provisions of the D&C Act.

The Ministry of Health and Family Welfare is in the process of amending the MDR to put in place specific provisions for determining the payment of compensation and the quantum of payment. Please see the response to question 13 for more information.

 

9. What information is required to be included on the label of the medical device?

The following particulars must be on the medical device.

1. name of the medical device
2. the details necessary for the user to identify the device and its use
3. name of manufacturer and address of manufacturing premises where the device has been manufactured
4. statement as to the net contents (in terms of weight or measure)
5. license number, date of manufacture
6. date of expiry (alternatively, its shelf life)
7. applicable storing and handling conditions, warnings and precautions
8. the batch number, as well as the manufacturing license number under which it is manufactured (if manufactured in India).
9. Imported products must display the import license number, name and address of the importer, address of the actual manufacturing premises and the date of manufacture.

The Legal Metrology (Packaged Commodities) Rules, 2011 (“LM Rules”) apply to medical devices in addition to the MDR. The LM Rules have prescribed labeling and packaging requirements. The label of any commodity covered by the LM Rules are required to have the following declarations:

1. Maximum retail price
2. Name and address of the manufacturer or importer
3. Net quantity
4. Common or generic name of the commodity
5. Country of origin
6. Month and year in which the commodity is manufactured or packed or imported
7. Name, address, telephone number, e-mail address of the person who can be or the office which can be contacted, in case of consumer complaints
8. Actual corporate name and complete address of domestic manufacturer or importer or packer

 

10. Are the prices of medical devices regulated and, if so, how?

Yes, prices of medical devices are regulated. Please see response to question 2 for further information.

 

11. Can medical devices be advertised directly to consumers? If not, what are the restrictions on marketing medical devices to consumers?

Advertisements in respect of medical devices which are not prohibited under the DMRA may be made directly to consumers. The following advertisements should not be restricted under the DMRA.

1. Advertisements referring to a medical device in terms which suggest that the medical device may be used to diagnose, cure, mitigate, treat or prevent a condition other than a Scheduled Disorder;
2. Advertisements referring to a medical device without making a reference to a Scheduled Disorder;
3. Awareness campaigns imparting knowledge regarding a Scheduled Disorder without making a reference to a medical device that may be used to diagnose, cure, mitigate, treat or prevent such condition; and
4. Advertisements publicizing the brand name of the company without making a reference to a medical device or a Scheduled Disorder.

 

12. How is the marketing of medical devices to healthcare practitioners regulated?

The DMRA and the UCPMP regulates the marketing of medical devices to healthcare practitioners.

DMRA

The DMRA specifies that advertisements may be made to healthcare practitioners in a confidential manner. The rules framed under the DMRA provide for the manner in which such advertisements may be made. The advertisement should be sent directly to the registered medical practitioner. The document should bear at the top the words “for the use only of a registered medical practitioner or a hospital or a laboratory”.

UCPMP

The UCPMP provides detailed guidance on the information to be specified in promotional material shared with healthcare practitioners. The UCPMP specifies that a medical device should be promoted only once it has been approved in India.

 

13. Are there proposals for reform or significant change to medical device regulation? If yes, when are they likely to come into force?

The following proposals for reform have been proposed.

Medical Device Compensation

The Drugs Technical Advisory Board (“DTAB”) – India’s apex technical advisory board for drugs and medical devices – is in the process of amending the MDR to provide for a process to provide compensation to patients who have suffered harm from faulty medical devices. The DTAB convened a sub-committee under the chairmanship of Dr. D.B Athani to arrive at a process for determining the manner of adjudicating compensation claims and the quantum of compensation. The report of the sub-committee is yet to be released to the public. There is presently no visibility on when the report will be released.

Enacting a New Law for Medical Devices

In November 2019, the NITI Aayog – the Indian Government’s policy think tank – submitted a draft bill to the Indian Government proposing to create a separate regulator for medical devices. The bill, titled the Medical Devices (Safety, Effectiveness and Innovation) Bill, 2019 (“Medical Devices Bill”) aims to introduce a Unique Identification Number on all medical devices, increase penalties for non-compliance as well as tighten the regulation applicable to clinical investigations. As of March 2020, the CDSCO and NITI Aayog have reportedly arrived at a consensus on the approach for regulating medical devices in the future. The CDSCO and the NITI Aayog have agreed that medical devices should be regulated under a separate wing of the CDSCO with a technical expert heading the division. Further, medical devices would be regulated under a separate legislation altogether and not as a subset of drugs as is currently the case. The Medical Devices Bill is currently being considered by the Health Ministry before being introduced in Parliament.

 

 

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Click the following links to read more legal articles from India:

1. Regulatory Pricing and Reimbursement Overview
2. Preclinical and Clinical Trial Requirements
3. Marketing, Manufacturing, Packaging & Labeling, Advertising
4. Traditional and OTC Products
5. Product Liability
6. Patents & Trademarks
7. Regulatory Reforms
8. Cannabinoid Drugs, Medicinal Cannabis and Opioid Drugs
9. Orphan Drugs and Rare Diseases
10. Localization
11. Biosimilars and Biologics
12. Medical Devices
13. Digital Health

 

Also from this Legal Handbook

Cannabinoid drugs, medicinal cannabis & opioid drugs in India – a comprehensive legal overview. Prepared in association with Nishith Desai & Associates, a leading law firm in India, this is an extract from The Pharma Legal Handbook: India, available to purchase here for GBP 119.

 

CANNABINOID DRUGS

Global Comment: For the purpose of this chapter, we will assume that Cannabinoid Drugs are preparations made out of extract or tincture of Cannabis. If a drug contains cannabinoids which have been synthetically manufactured, they would be regulated as drugs, except for drugs containing Tetrahydrocannabinol (THC). THC is regulated as a psychotropic substance in India. We have assumed that a drug that that contains only, or mostly, THC that is synthetically manufactured will not be called as a Cannabinoid Drug.

1. Are Cannabinoid Drugs authorized in your country?

Cannabinoid Drugs can be sold in India in accordance with the requirements laid down by law. Cannabinoid Drugs which are an extract or tincture from cannabis require a licensed under Narcotic Drugs and Psychotropic Substances Act 1985 (“NDPS Act”), Narcotic Drugs and Psychotropic Substances Rules 1985 (“NDPS Rules”), Drugs and Cosmetics Act,1940 (“D&C Act”) and the Drugs and Cosmetics Rules, 1945 (“D&C Rules”) for sale in India.

 

2. What are the regulatory authorities with jurisdiction over Cannabinoid Drugs?

The following authorities have jurisdiction with respect to all narcotic drugs including Cannabinoid Drugs:

1. Central Bureau of Narcotics (“CBN”) operates under the Department of Revenue, Ministry of Finance and is in charge of enforcement of the NDPS Act, which is India’s primary anti-drug abuse legislation. The CBN is headed by the Narcotics Commissioner.
2. Narcotics Control Bureau (“NCB”) operates under the Ministry of Home Affairs and exercises the function of the Central Government under the NDPS Act. The NCB is also in-charge of coordinating between various government authorities under the NDPS Act, Customs Act 1962 and Drugs & Cosmetics Act 1940 (“D&C Act”).
3. Central Drugs Standard Control Organisation (“CDSCO”) headed by the Drugs Controller General of India (“DCGI”) under the Ministry of Health and Family Welfare regulates clinical trials import, manufacture, marketing and clinical trials, biologics and medical devices in the territory of India.
4. State-level Licensing Authorities (“SLA”) are established in each Indian state and independently regulate the manufacture and sale of drugs, biologics and medical devices within the territory of their respective state.

 

3. Is there a specific regulatory framework for the authorization, pricing, and reimbursement of Cannabinoid Drugs?

There is no specific regulatory framework regulating the authorization, pricing and reimbursement of Cannabinoid Drugs.

AUTHORIZATION

As indicated in the first response, a Cannabinoid Drug can be sold after  obtaining appropriate licenses under the NDPS Act and NDPS Rules, as well as D&C Act and D&C Rules.

PRICING

There is no specific pricing framework for Cannabinoid Drugs in India. However, since cannabinoids drugs would be regulated under the larger framework applicable to medicinal drugs in India, they would be subject to price control.

Under the Drugs Price Control Order,2013 (“DPCO”) the National Pharmaceutical Pricing Authority (“NPPA”) is empowered to fix prices of drugs that qualify as ‘essential’. As of now, to our knowledge, no Cannabinoid Drug has been listed as an essential drug. However, even non-essential drugs are subject to price control, as they are not permitted to increase prices by more than 10% in any 12-month period.

REIMBURSEMENT

There is no specific regulatory framework for the reimbursement of drugs, including cannabinoid drugs, in India.

 

4. Which are the cannabinoid drugs that have received market approval to date?

So far, to our knowledge, no cannabinoid drugs have received market approval.

 

5. Who can prescribe Cannabinoid Drugs?

The persons who are permitted to prescribe cannabinoid drugs vary from state to state. But, at the least, the following persons can prescribe cannabinoid drugs:

1. A person who holds a qualification recognized under National Medical Commission Act, 2019 and is registered with a medical council;
2. A person registered as a dentist under the Dentists Act, 1948 (in some States with approval of the government);
3. A person who is registered in the practice of veterinary medicine and who possesses qualifications approved by the government (in some States with approval of the government)

 

6. Is there a list of doctors authorized to prescribe Cannabinoid Drugs?

No. There is no such list of doctors authorized to prescribe Cannabinoid Drugs.

 

7. What approvals or notifications are required to prescribe Cannabinoid Drugs?

At the minimum, the following authorizations are required to sell Cannabinoid Drug in India –

1. License from the Narcotics Commissioner to manufacture the Cannabinoid Drug
2. License from State Licensing Authority to manufacture Cannabinoid Drug
3. Marketing Permission from DCGI, if the Cannabinoid Drug has not been used in India to any significant extent under the conditions prescribed, recommended or suggested in the labelling thereof and has not been recognised as effective and safe by the DCGI.

 

8. Which organizations are authorized to sell/distribute Cannabinoid Drugs available?

The following entities are authorized to sell/distribute cannabinoid drugs –

1. Licensed vendors and druggists;
2. Hospitals, dispensaries and veterinary dispensaries working under Government supervision;
3. Other medical institutions authorised by the state government;
4. Dispensary owned by a registered medical practitioner where no prescriptions except his own are dispensed, provided that the registered medical practitioner is registered with the State Government.

 

9. Is there a list of retailers/ distributors authorized to sell Cannabinoid Drugs?

No. There is no publicly available list of retailers/distributors authorized to sell Cannabinoid Drugs.

 

10. Are there proposals for reform or significant change to the regulation of Cannabinoid Drugs?

No. There are currently no proposals for reform or significant change to the regulation of Cannabinoid Drugs.

 

11. When are they likely to come into force?

The question is not applicable.

 

MEDICINAL CANNABIS

Global Comment: For the purpose of this chapter, we have assumed that Medical Cannabis means use of Cannabis in its original form, i.e. not in form of extracts or tinctures, for medicinal purposes.

12. Is Medicinal Cannabis authorized in the country?

No, the sale of cannabis to patients for medicinal purposes is not permitted in India.

 

13. What are the regulatory authorities with jurisdiction over Medicinal Cannabis?

The following authorities have jurisdiction with respect to all narcotic drugs including Medicinal Cannabis:

1. Central Bureau of Narcotics (“CBN”) operates under the Department of Revenue, Ministry of Finance and is in charge of enforcement of the
   Narcotic Drugs and Psychotropic Substances Act 1985 (“NDPS Act”), which is India’s primary anti-drug abuse legislation. The CBN is headed by the Narcotics Commissioner.
2. Narcotics Control Bureau (“NCB”) operates under the Ministry of Home Affairs and exercises the function of the Central Government under the NDPS Act. The NCB is also in-charge of coordinating between various government authorities under the NDPS Act, Customs Act 1962 and Drugs & Cosmetics Act 1940 (“D&C Act”).
3. Each Indian State has the power to regulate the cultivation of any cannabis plant, production, manufacture, consumption, transport, import inter-State, export inter-State, sale, purchase, consumption or use of cannabis.

 

14. What is the regulatory framework for the authorization, pricing, and reimbursement of Medicinal Cannabis?

Medicinal Cannabis cannot be prescribed as a drug for the use of Indian citizens.

 

15. How is the production and import of Medicinal Cannabis regulated and by which agencies/authorities?

MANUFACTURE

Cultivation of Medicinal Cannabis may be done for scientific or research purposes under a license granted by the State Government and a separate license granted by the Narcotics Commissioner.

IMPORT

Cannabis, including Medicinal Cannabis, can only be imported into India for the following purposes:

i. Scientific requirements including analytical requirements of any Government laboratory or any research institute in India or abroad.

ii. Very limited medical requirements by a foreigner by a duly authorised person of a hospital or any other establishment of the Government especially
approved by that Government.

iii. De-addiction of drug addicts by Government or local body or by an approved charity or voluntary organisation or by such other institution as
may be approved by the Central Government.

iv. Restraining or immobilising wild animals by or under the authority of the Government and approved by that Government.

In order to import cannabis for above purposes, a permission from the Narcotics Commissioner is required.

Persons authorised to import cannabis for the above mentioned purposes are required to maintain records concerning the acquisition and use of the cannabis for at least two years.

 

16. What approval or notifications are necessary to produce or import Medicinal Cannabis?

Medicinal Cannabis can only be imported by duly authorised person of a hospital for very limited medical requirements of foreigners under a valid import permission granted by the Narcotics Commissioner.

 

17. What is the regulatory framework for the marketing and distribution of Medicinal Cannabis?

Medicinal Cannabis cannot be marketed and distributed in India.

 

18. How can patients obtain Medicinal Cannabis?

Indian patients cannot obtain medical cannabis. However, eligible foreign patients can import medical cannabis under an import permission from Narcotics Commissioner.

 

19. Who can prescribe Medicinal Cannabis?

Medicinal Cannabis cannot be prescribed in India.

 

20. Is there a list of doctors authorized to prescribe Medicinal Cannabis?

There is no list of doctors authorized to prescribe Medicinal Cannabis.

 

21. What approvals or notifications are required to prescribe Medicinal Cannabis?

Medicinal Cannabis cannot be prescribed in India.

 

22. Where is Medicinal Cannabis available?

Medicinal Cannabis can only be imported in India for specific uses. Please refer to Question 15 above for more information.

 

23. Is there a list of retailers authorized to sell Medicinal Cannabis?

There is no publicly available list of retailers authorized to sell Medicinal Cannabis.

 

24. Are there proposals for reform or significant change to the regulation of Medicinal Cannabis?

There are currently no proposals for reform or significant change to the regulation of Medicinal Cannabis.

 

OPIOID DRUGS

25. Are Opioid Drugs authorized in your country?

Yes, opioid drugs are authorized for marketing in India. Any person intending to market opioid drugs must obtain a license under the Narcotic Drugs and Psychotropic Substances Act 1985 (“NDPS Act”), Narcotic Drugs and Psychotropic Substances Rules 1985 (“NDPS Rules”), Drugs and Cosmetics Act, 1940 (“D&C Act”) and Drugs and Cosmetics Rules, 1945 (“D&C Rules”).

 

26. What are the regulatory authorities with jurisdiction over Opioid Drugs?

The regulatory authorities that have jurisdiction over Cannabinoids have jurisdiction over Opioid Drugs as well.

 

27. Is there a specific regulatory framework for the authorization, pricing, and reimbursement of Opioid Drugs?

There is no specific regulatory framework regulating the authorization, pricing and reimbursement of Opioid Drugs.

AUTHORIZATION

An Opioid Drug can be sold after obtaining appropriate licenses under the NDPS Act and NDPS Rules, as well as D&C Act and D&C Rules.

PRICING

There is no specific pricing framework for Opioid Drugs in India. However, since Opioid Drugs would be regulated under the larger framework applicable to medicinal drugs in India, they would be subject to price control under the Drugs Price Control Order, 2013 (“DPCO”). The DPCO gives power to the National Pharmaceutical Pricing Authority (“NPPA”) to fix prices of drugs that qualify as ‘essential’. Some opioids such as morphine and fentanyl have been dentified as essential medicines and their prices are now fixed by NPPA. The drugs that do not qualify as essential are not permitted to increase prices by more than 10% in any 12-month period.

REIMBURSEMENT

There is no specific regulatory framework for the reimbursement of drugs, including opioid drugs, in India.

 

28. Which are the Opioid drugs that have received market approval to date?

The following Opioid Drugs can be marketed in India:

1. Methyl Morphine (commonly known as Codeine) and Ethyl Morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5 % in undivided preparations and which have been established in therapeutic practice.
2. Fentanyl and its salts and preparations, admixtures, extracts or other substances containing any of these drugs.
3. Dihydrocodeinone (commonly known as Hydrocodone), its salts esters, salts of its esters, and preparations, admixtures, extracts or other substances containing any of these drugs.
4. Methadone, its salts, and all preparations, admixtures, extracts or other substances containing any of these drugs.
5. Morphine , its salts and all preparations containing more than 0.2 per cent. of Morphine.
6. Dihydroxy Codeinone (commonly known as ‘Oxycodone and Dihydroxycodeinone), its salts, its esters, salts of its esters and all preparations, admixtures, extracts or other substances containing any of these drugs.

 

29. Who can prescribe Opioid Drugs?

Opioid Drugs that have been identified in the response above fall under the Essential Narcotic Drug (“END”) list and can be prescribed by any medical practitioner who is:

1. registered as a medical practitioner or a dentist; and
2. has undergone training in pain relief and palliative care for prescription of ENDs for pain relief and palliative care or training in opioid substitution therapy for prescription of ENDs for treatment of opioid dependence.

 

30. Is there a list of doctors authorized to prescribe Opioid Drugs?

No. There is no such list of doctors authorized to prescribe Opioid Drugs.

 

31. What approvals or notifications are required to prescribe Opioid Drugs?

No. There are no specific approvals or notifications that are required to prescribe Opioid Drugs.

 

32. Which organizations are authorized to sell/distribute Opioid Drugs available?

Dealers and chemists who have obtained a license from the State Government to sell narcotic drugs on the END list can sell/distribute Opioid Drugs.

 

33. Is there a list of retailers/ distributors authorized to sell Opioid Drugs?

No. There is no public list of retailers/distributors authorized to sell Opioid Drugs.

 

34. Are there proposals for reform or significant change to the regulation of Opioid Drugs?

There are currently no proposals for reform or significant change that have been made to the regulation of Opioid Drugs.

 

35. When are they likely to come into force?

This question is not applicable.

 

 

 

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Click the following links to read more legal articles from India:

1. Regulatory Pricing and Reimbursement Overview
2. Preclinical and Clinical Trial Requirements
3. Marketing, Manufacturing, Packaging & Labeling, Advertising
4. Traditional and OTC Products
5. Product Liability
6. Patents & Trademarks
7. Regulatory Reforms
8. Cannabinoid Drugs, Medicinal Cannabis and Opioid Drugs
9. Orphan Drugs and Rare Diseases
10. Localization
11. Biosimilars and Biologics
12. Medical Devices
13. Digital Health

Also from this Legal Handbook

An insight into biosimilars & biologics in Indian Pharma. Prepared in association with Nishith Desai & Associates, a leading law firm in India, this is an extract from The Pharma Legal Handbook: India, available to purchase here for GBP 119.

 

1. Are biosimilar medicines considered the same as generic medicines in your country?

Biosimilar medicines are not regulated in the same manner as generic medicines in India. While biosimilars and generic medicines are classified as drugs under the Drugs & Cosmetics Act 1940 (“D&C Act”) (India’s primary drug control legislation), clinical trial requirements for biosimilars are stricter than those applicable to generic medicines. Once a drug formulation has received marketing authorization from the Central Drugs Standard Control Organisation (“CDSCO”) – India’s apex drug regulator – subsequent manufacturers of the drug formulation are not required to undertake clinical trials in respect of the same drug formulation, if the drug formulation has been marketed for over four years. However, biologics such as vaccines, recombinant deoxyribonucleic acid (“rDNA”) derived products and living modified organisms are required to undergo clinical trials even if another entity has been manufacturing the same biologic. As a result, unlike generic drugs, every iteration of a biologic must undergo clinical trials.

 

2. Are all biologic medicines, including biosimilar medicines patentable in your country?

Biologic medicines as well as biosimilars are patentable in India (subject to certain exceptions) as long as such biologic or biosimilar (i) is novel/new (ii) involves an inventive step/is non-obvious and (iii) has utility/industrial application.

Biologics

Biologics comprising living organisms that are not naturally occurring i.e. have been developed by humans may be patented. However, biologics comprised of a living organism already occurring in nature cannot be patented as the mere “discovery of any living thing or non-living substance occurring in nature” is not patentable under the Patent Act 1970. It may be noted that India does not grant patent protection to (i) the mere discovery of a new form of a known substance if it does not result in the enhancement of the known efficacy of that substance or (ii) mere discovery of any new property or use for a known substance.

Biosimilars

Biosimilars are not eligible for product patents (as the end product is the same as an already patented/known reference biologic) but are eligible for process patents as long as the process fulfils the other criteria for patentability. However, India does not grant patent protection to the mere use of a known process unless such known process results in a new product or employs at least one new reactant.

 

3. Is there a specific regulatory framework for the marketing authorization of biosimilar medicines in your country?

Yes, India has a specific regulatory framework for the marketing authorization of biosimilar medicines.

 

4. If yes, what is the regulatory framework for the authorization of biosimilar medicines?

Biosimilar medicines in India are regulated under:

1. The Drugs & Cosmetics Act 1940;
2. Drugs & Cosmetics Rules 1945 (“D&C Rules”) (framed under the D&C Act govern the process for clinical trials, import and manufacture of all drugs including biologics and biosimilars);
3. New Drugs & Clinical Trial Rules, 2019 (“New Drugs & CT Rules”) (framed under the D&C Act govern the procedure for the conduct of clinical trials of all drugs including biologics and biosimilars);
4. Guidelines on Similar Biologics: Regulatory Requirements for Marketing Authorization in India, 2016 (“Biosimilar Guidelines”) (guidelines that stipulate the pre-clinical trial requirements for biosimilars);
5. Rules for Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms/Genetically Engineered Organisms or Cells, 1989 (“Genetically Engineered Microorganisms Rules”) notified under the Environment (Protection) Act, 1986 (applicable to manufacture, import and storage of microorganisms and gene-technological products as well as genetically engineered microorganisms, microorganisms and cells);
6. Regulations and Guidelines on Biosafety of Recombinant DNA Research and Biocontainment, 2017 (“rDNA Guidelines”) (cover the regulation on biosafety of rDNA research and handling of hazardous microorganisms and GE organisms or cells);
7. Guidelines for Generating Pre-clinical and Clinical Data for rDNA Vaccines, Diagnostics and other Biologicals, 1999 (“Clinical Data Guidelines”) (cover preclinical and clinical evaluations. Their objective is to generate preclinical and clinical data with respect to the safety, purity, potency and effectiveness of rDNA vaccines, diagnostics and other biologicals);
8. CDSCO Guidance for the Industry, 2008 (“Guidance for the Industry”) (provides guidance to clinical trial sponsors regarding the submission of clinical trial applications under the D&C Act and GCP Guidelines);
9. Guidelines and Handbook for Institutional Biosafety Committee, 2011 (“IBSC Guidelines”) (provides guidance to the Institutional Biosafety Committees (“IBSC”) that are required to be set up to oversee the preclinical trials of biologics and biosimilars in India);
10. Guidance Document for Industry: Submission of Stability Data and Related Documents for Review and Expert Opinion for Granting Post-approval Changes in Shelf Life of Recombinant Biotherapeutic Products and Therapeutic Monoclonal Antibodies published by the National Institute of Biologicals 2016 (“Post-Approval Guidelines”) (provides guidance and recommendations to holders of marketing authorization of biologics who intend to make post approval changes in the shelf life of the product).

The authorities responsible for overseeing the approval process are:

1. Institutional Biosafety Committee (a committee that is required to be constituted by every organisation engaged in research, handling and production activities related to genetically modified organisms (“GMO”). The IBSC is the nodal point for interaction within an organisation for implementation of the biosafety regulatory framework);
2. Review Committee on Genetic Manipulation (“RCGM”) (a regulatory/approval committee established under the Genetically Engineered Microorganisms Rules to monitor the safety related aspect in respect of on-going research projects or activities involving hazardous microorganisms, GMOs and cells and products thereof);
3. Genetic Engineering Appraisal Committee (“GEAC”) (a body established by the Ministry of Environment, Forest and Climate Change (“Environment Ministry”) to appraise activities involving large scale use of hazardous microorganisms, GMOs or cells in research, industrial production and experimental field trials); and
4. The Central Drugs Control Standards Organisation (the apex regulatory body with respect to clinical trials, import and manufacture of all drugs in India including biologics and biosimilars).

 

5. What kind of data package is needed to obtain approval for a biosimilar drug?

The approval process for biosimilar drugs is divided into pre-clinical trial, clinical trial and post clinical trial stages with each stage having different data package requirements. Data packages may also differ based on the risk classification assigned to the GMOs) under the Genetically Engineered Microorganisms Rules, as prior authorisation from the IBSC and subsequent approval of the RCGM is required for conducting experiments involving LMOs classified in risk categories 3 or higher.

In addition to RCGM permission, the approval of the GEAC is also required for activities involving large scale use of hazardous microorganisms and recombinants in research and industrial production. The GEAC is also responsible for approval of proposals relating to release of GMOs and products into the environment including experimental field trials.

Pre-clinical Trial Stage

Data packages must demonstrate the consistency of process and product, product characterisation, and product specifications to comply with RCGM requirements. The application to the RCGM should be accompanied by approval of the IBSC and the approval of the Institutional Animal Ethics Committee (“IAEC”) along with details of the personnel involved such as study director, principal investigator, pathologist, other investigators and quality assurance officer.

The information in the data package may include the following.

Basic Information about Reference Biologic

 

1. Information about drug, route of administration, absorption and elimination rate, therapeutic index, dose, vehicle, mode of administration, dose response etc.
2. Bioequivalence range, if available,
3. Tissue-specific localisation, if available,
4. Available toxicity data on reference biologic, and
5. Mode of action.

Basic Information about the Similar Biologic

1. Known/proposed clinical use,
2. Target population (age, sex, pregnancy, lactating, children etc.),
3. Dosage units (frequency and intervals),
4. Route/alternate routes of administration,
5. Final formulation of adjuvants and additives including toxicity data of such adjuvants and additives,
6. Diluents, and
7. Presentation e.g. pre-filled syringe, cartridge, vial.

Quality Attributes

To establish similarity, the quality attributes of a biosimilar may be considered in two categories:

1. Critical Quality Attributes (“CQA”): these attributes have a direct impact on the clinical safety or efficacy. All attributes that directly impact the known mechanism(s) of the molecule fall in this category.
2. Key Quality Attributes (“KQA”): are those attributes which are not known to impact clinical safety and efficacy but are considered relevant from a product and process consistency perspective.

Attributes that do not impact the known mechanism(s) of action of the molecule fall in this category. While KQAs must necessarily be controlled within acceptable limits, it may be acceptable to have slight differences in comparison to the reference biologic.

Other Information

1. Details of pharmacodynamic study design (both in-vitro and in-vivo studies). The in-vitro studies should establish comparability between the reference biologic and the biosimilar.
2. Details of toxicology study design such as in vivo toxicity studies on a pharmacologically relevant animal involving three levels of doses (1X, 2X and 5X of human equivalent dose) for repeat dose toxicity studies.
3. Immune responses in animals i.e. antibody response, immune toxicity.
4. Safety pharmacology, reproductive toxicity, mutagenicity and carcinogenicity studies are not generally required unless warranted by the results of repeat dose toxicological studies.

Clinical Trial Stage

Based on successful evaluation of pre-clinical study reports, the RCGM may recommend that the Drugs Controller General of India (“DCGI”) (head of the CDSCO and apex drug regulator of India) allow the sponsor to conduct appropriate phase of clinical trial as per CDSCO requirements. A clinical trial typically takes place over four stages. The New Drugs & CT Rules, which have replaced the erstwhile clinical trial rules under Part X-A and Schedule Y of the D&C Rules, govern the conduct of clinical trials in India. The clinical trial data requirements for biosimilars are the same as for drugs apart from a few differences.

Overview of Clinical Trial Regulation

While a clinical trial is typically conducted over four phases, the DCGI is empowered to expedite the approval process with respect to a drug taking into account the severity, rarity and prevalence of the disease. For instance, the requirement for submission of studies relating to animal toxicity, reproduction, tetrogenic, perinatal, mutagenicity and carcinogenicity may be waived if the CDSCO is satisfied that there is adequate published evidence regarding the safety of the drug.

Additionally, a local clinical trial may not be required at all if the new drug is approved and marketed in countries specified by the CDSCO and if:

1. No major adverse events have been reported,
2. There is no probability or evidence of difference in (a) the enzymes or gene involved in the metabolism of the new drug, (b) pharmacokinetics (“PK”) and pharmacodynamics (“PD”), safety and efficacy of the new drug between the Indian population and the population the drug was tested on,
3. The applicant has undertaken to conduct Phase IV clinical trials (post-marketing studies) to establish and effectiveness of the new drug as per study design that has been approved by the CDSCO.

Additional Data Requirements for Biosimilars

1. Comparative PK and PD studies: PK and PD studies are conducted in the first phase of the clinical trial. PK studies should be conducted to demonstrate comparability in both single dose and multi-dose PK studies. For biosimilars that is proposed to be used in a multi-dose regimen, multiple-dose, comparative, parallel arm steady state PK studies are required. Comparative PD studies are also recommended when the PD properties of the reference biologic are well characterised with at least one PD marker validated for a clinical outcome of the molecule.
2. Confirmatory safety and efficacy studies: In order to eliminate any residual risk, a comparative safety and efficacy study (typically conducted in the third phase of the clinical trial) are required. The requirement of safety and efficacy study may be waived only in exceptional cases if there are no uncertainties left after comparing the biosimilar and reference biologic at the analytical, non-clinical and PK/PD level and if a comprehensive post-marketing risk management plan has been presented to the CDSCO. Wherever, phase III trial is waived, the immunogenicity that should have been gathered in the PK/PD study will also need to be generated during post-approval phase IV study.

Post-Clinical Trial Stage

Post-marketing surveillance is particularly important in the case of biosimilars, as a biosimilar is approved based on a reduced pre-clinical and clinical trial data package. Therefore, a formal Risk Management Plan must be established to monitor and detect both known inherent safety concerns and potential unknown safety signals that may arise from the biosimilar. A comprehensive pharmacovigilance plan must also be put into place which shall include the submission of periodic safety update reports (“PSUR”).

In the event phase III clinical trials are not carried out, immunogenicity studies must be conducted in phase IV. Additional safety data may need to be collected after market approval through a pre-defined single arm study of over 200 evaluable patients. The study should preferably be completed within 2 years of receipt of marketing permission/manufacturing license unless otherwise justified.

 

6. Is this any different to the requirements for the original Biologics drug?

The data package requirements for biologics drugs are similar to those of biosimilars. The notable differences are:

1. The data collected for an original biologics drug will not be in reference to a pre-existing product. For instance, the PK/PD data collected will not be in reference to another product but will be directed towards assessing the PK/PD of the original biologics drug.
2. Phase III clinical trial must be conducted as the original biologic will be licensed on the basis of a full safety, efficacy and quality data as opposed to the reduced data package employed when licensing a biosimilar.

 

7. What are the requirements for the choice of the reference comparator product?

The requirements for choice of comparator product are as follows:

1. reference comparator product should be licensed / approved in India or a country that follows the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use (“ICH”)
2. reference comparator product should be the innovator’s product as another biosimilar cannot be the reference biologic as the comparator product should be licensed based on a full safety, efficacy and quality data.

 

8. Can the comparator product be sourced from another regulatory jurisdiction? If yes, what are the data needed to support this approach?

The comparator product can be imported from another regulatory jurisdiction regardless of whether such product is beingmarketed in India. The only requirement is that the comparator product be approved in an ICH country. However, the acceptance of an innovator product as comparator product for evaluation of a biosimilar does not imply approval for the use of such comparator product in India.

 

9. How are the prices of biosimilar medicines regulated? Is this any different to the requirements for the original Biologics drug?

The Drugs (Prices Control) Order 2013 (“DPCO”) governs pricing for both original biologics and biosimilars in the same manner. The National Pharmaceutical Pricing Authority (“NPPA”) is empowered by the DPCO to fix ceiling prices of drugs (including biologics) that are listed in the schedule to the DPCO (“Scheduled Formulations”). The Scheduled Formulations include biologics such as vaccines and sera. The DPCO clarifies that all biologicals irrespective of variation in source, composition and strengths and all the products of the same vaccine/sera/immunoglobulin considered as part of the schedule to the DPCO.

 

10. What is the reimbursement policy for biosimilar medicine? Is this any different to the requirements for the original Biologics drug?

India currently does not have a mechanism for reimbursement of biologics or biosimilar medicines. Out-of-pocket-expenditure is the primary source of healthcare financing in India as India suffers from a low level of both private and government insurance penetration. In addition to the above, the Indian government runs schemes that provide free or highly subsidized care to Indian citizens. There are also Non-Governmental Organisations that provide free medication to patients who are otherwise unable to afford them. All of these methods are however, applicable for all drugs, biologics and medical devices.

 

11. Does biosimilar competition impact the reimbursement policy of the originator reference products?

India does not have a reimbursement policy in place.

 

12. What is the legal framework for biosimilar medicines prescribing (clinical decision maker) and dispensing (pharmacy level, hospital or retail)? Is this any different to the requirements for the original Biologics drug?

In India, doctors are required to prescribe all drugs, including biologics by their chemical names i.e. the name of pharmaceutical formulation. There is no difference in requirements for prescribing or dispensing an original biologic and a biosimilar.

Prescribing

A valid prescription shall:

1. Be in writing and be signed by a medical practitioner registered under the Indian Medical Degrees Act, 1916, the Indian Medical Council Act, 1956 or the Dentists Act, 1948 among others (“Registered Medical Practitioner”),
2. Specify the name and address of the person for whose treatment it is given, and
3. Indicate the total amount of medicine to be supplied and the dose to be taken.

Dispensing

Biologics or biosimilars can only be dispensed by registered pharmacists on the basis of a valid prescription signed by a registered medical practitioner.

 

13. Is the system considering physician-led switching and/or pharmacy-level substitution (without involvement of the clinical decision maker)?

Pharmacy level substitutions of a biosimilar for a biologic are possible as doctors in India are required to prescribe medicines using their chemical name. Moreover, a biosimilar can be approved for all the clinical indications the reference biologic has been approved if:

1. Similarity with respect to quality and preclinical assessment has been proven to reference biologic,
2. Clinical safety and efficacy is proven in one indication,
3. Mechanism of action is same for other clinical indications,
4. Involved receptor(s) are same for other clinical indications.

 

14. What are the post – authorisation requirements (including pharmacovigilance, risk management plans, post-approval studies) for biosimilar medicines? Is this any different to the requirements for the original Biologics drug?

Pharmacovigilance

Entities marketing biosimilars are obliged to undertake pharmacovigilance for a period of four years from the launch of the drug. Under the pharmacovigilance system, the marketer must have a risk management plan in place which provides brief details of safety concern and necessary action taken by the marketer to mitigate these safety concerns. PSURs must be submitted to the CDSCO every six months for the two years after the biosimilar has been granted approval. Thereafter, the PSUR must be submitted annually for two more years.

Post-approval Studies

Post-approval studies for biosimilars must be conducted in more than two hundred patients in continuation to demonstrate comparability between the biosimilar and the original biologic. In the event permission was obtained to not undertake safety and efficacy study, immunogenicity data that should have been gathered in the PK/PD study will need to be generated in the post-approval phase. However, if pre-approval immunogenicity studies were conducted on more than 100 patients, then the number of patients in the post-approval study may be modified such that safety data (from both immunogenicity and post-approval study) is derived from a minimum if 300 patients treated with the similar biologic.

 

15. Are there specific policies and requirements in terms of biosimilar medicines labelling in the event of second medical use patents? Is this any different to the requirements for the original Biologics drug?

India does not recognise second medical use patents as the Patents Act, 1970 (“Patents Act”) – India’s patent regulatory framework- excludes the discovery of a new use for a known substance from the definition of invention.

 

16. Have there been any significant legal/judicial developments in relation to biosimilars in your country? (Including but not limited to IP, procurement, competition, misleading information campaign, access to reference comparator product)

The Delhi High Court held that the predecessor to the Biosimilar Guidelines published in 2012 is enforceable in law in the case of Roche Products (India) Pvt. Ltd. & Ors v. Drugs Controller General of India & Ors. [MIPR 2016 (2) 217] (“Roche Judgement”). The court held that guidelines are in the nature of directions issued by the government and as long as the guidelines are not in contradiction but merely in addition to already existing rules and regulations, the guidelines will have legal validity. Even though the Roche Judgement was in context of the previous version of the Biosimilar Guidelines, the same principle should apply to the current Biosimilar Guidelines as well.

 

17. Are there proposals for reform or significant change to the legal, regulatory, procurement of biosimilars? If yes, when are they likely to come into force?

There are currently no proposals for reform or significant change to the legal, regulatory or procurement framework of biosimilars.

 

 

 

 

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Click the following links to read more legal articles from India:

1. Regulatory Pricing and Reimbursement Overview
2. Preclinical and Clinical Trial Requirements
3. Marketing, Manufacturing, Packaging & Labeling, Advertising
4. Traditional and OTC Products
5. Product Liability
6. Patents & Trademarks
7. Regulatory Reforms
8. Cannabinoid Drugs, Medicinal Cannabis and Opioid Drugs
9. Orphan Drugs and Rare Diseases
10. Localization
11. Biosimilars and Biologics
12. Medical Devices
13. Digital Health

 

Also from this Legal Handbook

The key facts about the localization in Indian Pharma. Prepared in association with Nishith Desai & Associates, a leading law firm in India, this is an extract from The Pharma Legal Handbook: India, available to purchase here for GBP 119.

 

1. Are there any rules or regulations requiring and/or encouraging localization in your country? What is the legal framework defining these localization rules and policies?

There are no specific legislations or regulations requiring and/or encouraging localization in India. The relevant localization policies have been elaborated upon in the answers provided below.

 

2. Have there been any recent significant changes involving localization rules?

Yes, there have been significant changes involving localization rules.

 

3. If yes, when did they take place and what did they involve?

Exemption from Drug Price Control

The Department of Pharmaceuticals by way of an order (“Order”) extended a price control exemption that was earlier granted only to manufacturers of new drugs and medical devices protected through a product patent (“Patented New Drugs”) developed through indigenous research and development to all Patented New Drugs regardless of the country in which such drugs are developed (“New Drug Exemption”). The New Drug Exemption was effective from January 03, 2019.

Prior to the Order, the scope of price control exemption was limited to only those manufacturers who were producing Patented New Drugs that were (i) developed through indigenous (i.e. local) research and development and (ii) not produced elsewhere. However, the New Drug Exemption removes all localization requirements. Therefore, even manufacturers, importers and marketers of Patented New Drugs developed and manufactured outside India are now eligible for price control exemption for a period of five years from the start of its commercial marketing. Conversely, domestic manufacturers who marketed Patented New Drugs in India and outside India have also become eligible for price control exemption, which was not the case earlier.

Prices of all drugs and medical devices in India are controlled under the Drugs (Prices Control) Order, 2013 (“DPCO”). The National Pharmaceutical Pricing Authority (“NPPA”) set up under the DPCO is empowered to fix ceiling prices of drugs and medical devices that are listed in the schedule appended to the DPCO (“Scheduled Formulations”). The drugs that are not part of the schedule to the DPCO (“Non-Scheduled Formulations”) are under strict price surveillance. The prices of Non-Scheduled Formulations cannot be increased by more than 10% in any 12 month period.

 

Exemption from Conducting Local Clinical Trials

The New Drugs and Clinical Trial Rules, 2019 (“New Drugs & CT Rules”) empowers the Central Drugs Standard Control Organisation (“CDSCO”)- India’s apex drug controller- to exempt a drug approved in foreign jurisdiction specified by the CDSCO from undergoing local clinical trials to obtain marketing authorization in India. The New Drugs & CT Rules came into force on March 19, 2019. For more information, please see Question 6.

 

4. Is the process of obtaining a marketing authorization impacted by localization policies in your country?

Yes, the process of obtaining marketing authorization is impacted by localization policies in India.

 

5. If yes, how so (what are the incentives received or the requirements)?

Drugs

As a matter of rule, new drugs are required to undergo local clinical trials before being granted marketing authorization in India to determine whether such drug is safe and efficacious for the Indian population. A new drug includes the following:

1. A drug, including a bulk drug substance, which has not been used in India to a significant extent and whose safety, efficacy and therapeutic value has not been established in India;
2. A drug which is already approved which is now proposed to be marketed with modified or new claims such as indication, dosage, dosage forms or route of administration;
3. A Fixed Dose Combination (“FDC”) of two drugs individually approved earlier but which are now proposed to be changed for the first time or if the ratio of drugs in an FDC is sought to be changed;
4. A modified or sustained release form of a drug or novel drug delivery system of any drug approved by the CDSCO; and
5. All vaccines and Recombinant DNA (r-DNA) derived drugs, unless certified otherwise.

However, a local clinical trial may not be required at all if the new drug is approved and marketed in countries specified by the CDSCO and if:

1. No major adverse events have been reported;
2. There is no probability or evidence of difference in (a) the enzymes or gene involved in the metabolism of the new drug and, (b) safety and efficacy of the new drug between the Indian population and the population the drug was tested on; and
3. The applicant has undertaken to conduct comprehensive post-marketing surveillance to establish and effectiveness of the new drug as per a study design that has been approved by the CDSCO.

 

Medical Devices

Generally, medical devices that have not been approved by the CDSCO (“Investigational Medical Devices”) are required to undergo clinical investigations before they can be manufactured or imported for sale or distribution in the country. Submission of such clinical investigation data is a pre-requisite to obtaining a manufacturing or import license in respect of such medical device.

However, when a free sale certificate has been issued in respect of any medical device by the national regulatory authority of Australia, Canada, Japan, European Union countries or the United States of America, an import or manufacturing license can be granted without carrying out a clinical investigation.

 

6. Is the pricing process for pharmaceutical products impacted by localization policies in your country?

Yes, the pricing process of pharmaceutical products is impacted by localization policies.

 

7. If yes, how so (what are the incentives received or the requirements)?

For more information, please see Question 3.

 

8. Is the reimbursement of pharmaceutical products impacted by localization policies in your country?

The reimbursement of pharmaceutical products is not impacted by localization policies in India as India does not have a reimbursement policy for pharmaceutical products.

 

9. If yes, how so (what are the incentives received or the requirements)?

Not applicable.

 

10. Is the access to public or public tenders of pharmaceutical products impacted by localization policies in your country?

Yes, access to public tenders of pharmaceutical products is impacted by localization policies.

 

11. If yes, how so (what are the incentives received or the requirements)?

As part of the ‘Make in India’ policy, the Indian Government gives preference to ‘local supplier’ of pharmaceutical products and medical devices for public procurement purposes by all government procuring entities. The Public Procurement Policy of India stipulates the eligibility criteria to obtain preferential status in case of tenders.

To qualify as a local supplier of pharmaceutical products, the minimum local content shall be 75% for all products manufactured in India and 10% for all products manufactured outside of India. The local content requirements are slated to increase every financial year until they reach 90% and 30% respectively for fiscal year 2023-25.

For medical devices, the minimum local content is as follows:

Category of Medical Devices	% of Local Content
Medical disposables and consumables	50%
Medical electronics, hospital equipment, surgical instruments	25%
Implants	40%
Diagnostic Reagents/IVDs	25%

Separately, the Indian Government has also amended the General Financial Rules, 2017 (“GFR”) – a compilation of rules and orders to be followed by Government Departments when dealing with matters involving public finances – restricting bids for public tenders from bidders based in countries which share a land border with India (“Bordering Countries”). The amendment requires bidders from Bordering Countries to register with the Department for Promotion of Industry and Internal Trade (“DPIIT”) to be eligible to bid for public procurement of goods, services or works carried out by government bodies (including public sector banks and enterprises).

 

12. Are import tariffs, importation and/or exportation permits, trade and/or taxation of pharmaceutical products impacted by localization policies in your country?

Yes, import tariffs, importation and/or exportation permits, trade and/or taxation of pharmaceutical products is not impacted by localization policies in India.

 

13. If yes, how so?

Import tariff exemption is granted for some pharmaceutical products by the Finance Ministry of India. However, after the introduction of the Make in India policy, the Central Government has withdrawn tariff exemptions granted to over 70 drugs including life-saving drugs used for HIV with a view to boost production of pharmaceutical products in India.

 

14. Are there any other incentives or advantages offered by the current local localization rules in your country?

Yes.

 

15. If yes, what are they?

India offers tax incentives in the form of tax deductions for in-house R&D expenditures.

 

16. Are there discussions about the possibility of implementing localization policies in your country?

None.

 

17. If yes, what are the proposed reforms and when should they come into place?

None.

 

 

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Click the following links to read more legal articles from India:

1. Regulatory Pricing and Reimbursement Overview
2. Preclinical and Clinical Trial Requirements
3. Marketing, Manufacturing, Packaging & Labeling, Advertising
4. Traditional and OTC Products
5. Product Liability
6. Patents & Trademarks
7. Regulatory Reforms
8. Cannabinoid Drugs, Medicinal Cannabis and Opioid Drugs
9. Orphan Drugs and Rare Diseases
10. Localization
11. Biosimilars and Biologics
12. Medical Devices
13. Digital Health

Also from this Legal Handbook

Want to know more about orphan drugs & rare diseases in India? Read on! Prepared in association with Nishith Desai & Associates, a leading law firm in India, this is an extract from The Pharma Legal Handbook: India, available to purchase here for GBP 119.

 

1. What is the definition of Rare Diseases in your country?

India does not have a definition of rare diseases. The National Policy on Treatment of Rare Diseases, 2020 (“NPTRD”), which is currently in the draft form, highlights the necessity of coming up with a definition of rare diseases that fits India’s needs but does not provide one.

The government had solicited comments from the general public early 2020 in respect of the NPTRD and is in the process of finalizing the document.

 

2. Does the designation of ‘Orphan Drug’ exist in your country? (Does it correspond with the definition of Rare Diseases?)

Yes. Orphan Drugs have been defined in the New Drugs & Clinical Trial Rules 2019 (“New Drugs & CT Rules”) as a drug “intended to treat a condition which affects not more than five lakh (500,000) persons in India”.

 

3. What is the regulatory framework for the authorization of an Orphan Drug? (Is this regulatory framework based on Rare Disease status or can it alternatively be based on Orphan Drug foreign status?)

Clinical Trials

The regulatory framework for the clinical trial of an Orphan Drug is similar to the clinical trial process of other drugs apart from a few relaxations that are granted to Orphan Drugs. The relaxations are as follows:

1. The Central Drugs Control Standards Organization (“CDSCO”), India’s apex drug regulatory agency, can dispense with the requirement of conducting local clinical trials in the case of Orphan Drugs.
2. The sponsor of a clinical trial of an orphan drug can request the CDSCO to expedite the review process for approval of such Orphan Drug.
3. No application fee is required to be paid for the conduct of a clinical trial of an Orphan Drug.

 

Authorization

The entity seeking to market any new drug in India, including an orphan drug, must obtain authorization from the CDSCO to import or manufacture such drug. A new drug is a drug whose safety and therapeutic efficacy has not been tested on the Indian population.

 

 

4. Does your country have provisions for relaxed clinical trial/scientific evidence requirements in respect of Orphan Drugs as compared to other drugs?

Please see response to Question 3.

 

5. Is there an expedited pathway for Orphan Drugs?

Yes, there is an expedited review process for approval of Orphan Drugs after clinical development.

 

6. Are foreign marketing authorizations recognized in your jurisdiction for Orphan Drugs? If yes, marketing authorizations from which countries are recognized?

India recognizes foreign marketing authorizations of new drugs (including orphan drugs) from countries recognized by the CDSCO (under Rule 101 of the New Drugs & CT Rules). The CDSCO is yet to notify any countries under Rule 101. In the event the CDSCO recognizes marketing authorizers from a particular country, the drug will not be required to undergo local clinical trials for obtaining marketing authorization. Nonetheless, a separate marketing authorization will be required to be obtained in respect of the new drug. However, unlike other drugs, requirements for post-marketing surveillance for Orphan Drugs may be relaxed at the discretion of the CDSCO. 

 

7. Can Orphan Drugs be reimbursed? If so, is there a specific reimbursement procedure for Orphan drugs?

India has a financial assistance program in place for treatment of rare diseases.

The Union Health Ministry as well as the various state health ministries have set up technical committees known as the Central Technical Committee (“CTC”) and the State Technical Committee (“STC”) respectively, to review applications by patients requesting financial assistance for treatment of rare diseases. The relevant patient or caregiver can apply to the STC or the CTC directly to request assistance. It may be noted that the CTC will convey its decision only to the relevant STC. In the event the CTC considers the case favorably, the relevant State can claim 60% of the approved cost of treatment from the CTC.

The NPTRD has also proposed a financial assistance scheme for treatment of rare diseases. The scheme divides rare diseases into three categories and provides financial assistance as follows:

1. Group A: Disorders amenable to a one-time curative treatment e.g. Adrenoleukodystrophy, Wiskot Aldrich Syndrome, Tyrosinemia, Fabry’s disease. For diseases in group A, the Central Government has proposed providing financial support of up to INR 15,00,000 (USD 20,300). Approximately 40% of the Indian population is eligible for financial assistance under this initiative.
2. Group B: Diseases requiring long term or lifelong treatment which have relatively lower cost of treatment and for which benefit has been documented in literature. Annual or more frequent surveillance may be required to treat such diseases. Group B diseases include Tyrosinemia type 1 and 2, Homocystinuria, Propionic Acidemia and Isovaleric Acidemia. The NPTRD does not specifically provide for financial assistance for Group B disorders. Instead, financial assistance for diseases in Group B has been made the purview of State Governments.
3. Group C: Diseases for which definitive treatment is available but challenges exist in terms of high cost, lifelong therapy and issues relating to optimal patient selection. Group C diseases include Gaucher Disease, Hurler Syndrome, Hunter Syndrome, Spinal Muscular Atrophy, Cystic Fibrosis, and Duchenne Muscular Dystrophy. The Central Government has proposed setting up a digital platform to crowdfund the cost of treatment for diseases in Group C. Individual and corporate donors are permitted to contribute to the fund which shall be used to cover the cost of treatment of individuals suffering from Group C diseases at designated government hospitals equipped for treating rare diseases.

 

8. How are the prices of Orphan Drugs regulated?

Orphan Drugs, as identified by the Health Ministry from to time, are exempt from price regulation.

 

9. In case of reference price based on a basket of countries, what countries are included?

India does not follow a system requiring a reference price based on a basket of countries.

 

10. Have there been any significant legal/judicial developments in relation to Orphan Drugs in your country?

The constitutional obligation of the state to ensure access to life saving drugs has been formally recognized by the Delhi High Court in Mohd. Ahmed (Minor) v. Union of India & Ors W.P.(C) No. 7279 of 2013 (“Mohd. Ahmed Case”). In the Mohd. Ahmed Case, the Delhi High Court directed the Delhi Government to provide the Mohd. Ahmed (minor patient in question) with enzyme replacement therapy worth INR 600,000 (USD 8,334) per month as a treatment to gaucher. The petitioner was represented through his father who was a rickshaw-puller and could not afford the exorbitant cost of treating his minor child Mohd. Ahmed. Therefore, the parents of the minor patient had approached the Delhi High Court to request the Court to direct the Delhi Government to offer financial assistance with respect to the treatment of the rare disease.

 

11. Are there proposals for reform or significant change to the regulation of Orphan Drugs? If yes, when are they likely to come into force?

The finalization of the NPTRD is the primary regulatory reform expected in the orphan drug space. 

 

 

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Click the following links to read more legal articles from India:

1. Regulatory Pricing and Reimbursement Overview
2. Preclinical and Clinical Trial Requirements
3. Marketing, Manufacturing, Packaging & Labeling, Advertising
4. Traditional and OTC Products
5. Product Liability
6. Patents & Trademarks
7. Regulatory Reforms
8. Cannabinoid Drugs, Medicinal Cannabis and Opioid Drugs
9. Orphan Drugs and Rare Diseases
10. Localization
11. Biosimilars and Biologics
12. Medical Devices
13. Digital Health

Also from this Legal Handbook

Regulation of medical devices in India has speedily evolved in the preceding two years. Before the introduction of the Medical Device Rules, 2017 (“MDR 2017”), the regulation of medical devices and drugs was inextricably linked. In the 18 months since the MDR 2017 has come into force, the biggest challenge has been evolving unique enforcement protocols for regulating medical devices.

In 2019, the Indian Government is stepping up to this challenge. By constituting a special vertical at the apex drug regulatory level, releasing the roadmap for medical devices and bringing a wide variety of medical devices within the regulatory ambit, it is clear that the medical devices industry can expect exciting times ahead.

 

Health Ministry releases proposal to regulate all medical devices in India

The Ministry of Health and Family Welfare (“Health Ministry”) has notified ten additional categories of medical devices in under the regulatory framework. The medical devices notified are all implantable medical devices, CT scan equipment, MRI equipment, defibrillators, dialysis machine, PET equipment, X- ray machine and bone marrow cell separators, organ preservation solution [1] and ultrasound equipment[2] (“Additional Medical Devices”). Organ preservation solution was notified as a medical device with immediate effect. Ultrasound equipment will be regulated as a medical device with effect from November 2020 while the others will be regulated as a medical device from April 2020.

The Additional Medical Devices have been notified as ‘drugs’ for the purposes of the Drugs and Cosmetics Act, 1940 (“D&C Act”) – the current regulatory framework governing drugs and medical devices. The notification of the Additional Medical Devices comes close at the heels of other categories of medical devices such as nebulizers, blood pressure monitoring devices, digital thermometers and glucometers recently also being notified under the D&C Act (which will come into effect from January 2020). The Health Ministry is also planning on notifying surgical gowns, surgical drapes and incision drapes as medical devices.[3]

The notification of the Additional Medical Devices marks the government’s strong push towards regulating the medical device sector as a whole. Currently, only 15 categories of medical devices are regulated under the D&C Act through the MDR 2017, which came into effect last year. Prior to the MDR 2017, regulated medical devices were governed by the provisions of the Drugs and Cosmetics Rules, 1945 (“D&C Rules”) – which was originally intended to regulate drugs and cosmetics. The Health Ministry has already released a draft notification to initiate the process for registering all medical devices manufactured in India on a voluntary basis for the next couple of years.

One of the major implications of the notification of the Additional Medical Devices (once it comes into effect) would be the applicability of price control over all the products. Drugs and regulated medical devices are subject to some form of price control under the Drugs (Prices Control) Order, 2013 (“DPCO”), either by restricting importers and manufacturers of drugs/regulated medical devices from increasing the price of the product by more than 10% over the preceding twelve months, or having its ceiling price fixed as determined by the National Pharmaceutical Pricing Authority – the apex drug and regulated medical device pricing regulator.

 

Union Health Ministry in the Process of Introducing a Patient Compensation Plan for Faulty Medical Devices

The B.D. Athani sub-committee (“Sub-Committee”) set up by the Drugs Technical Advisory Board (“DTAB”)- India’s apex advisory body on technical matters relating to drugs- is in the final stages of drawing up a patient compensation plan for faulty medical devices (“Compensation Plan”).[4] The Sub-Committee, set up in a DTAB meeting in November 2018 comprises ten persons including senior members of the All India Institute of Medical Sciences, Safdarjung Hospital, State Drugs Controller of Haryana and a representative from the Medical Technology Association of India, among others. The Sub-Committee is headed by B.D. Athani, the Directorate General of Health Services.[5]

The MDR 2017- the current regulatory framework governing medical devices in India- does not contain any compensation provision for harm caused to patients from faulty medical devices. As a result, compensation in such cases is determined on a case-to-case basis by either the regulatory authorities or the courts. The proposed compensation formula requires (i) the manufacturer/importer of medical device to provide medical management and (ii) compensation as per the New Drugs & Clinical Trial Rules 2019 to the person adversely affected by the medical device.[6]

Once the Sub-Committee submits its report on the Compensation Plan, it will be considered by the DTAB and then forwarded to the Health Ministry as a DTAB recommendation. Subsequently, the Compensation Plan will become part of the law once the Health Ministry notifies it in the official gazette as part of MDR 2017.

 

Medical Devices Technical Advisory Group Constituted to Advise Drug Regulator on Regulation of Medical Devices

The Health Ministry has authorized Central Drugs Standard Control Organization (“CDSCO”)- India’s apex drug regulatory authority- to set up the Medical Devices Technical Advisory Group (“MDTAG”) to advise the CDSCO on the regulation of medical devices.[7] The mandate of the MDTAG is to (i) examine issues relating to the implementation of medical device regulation in India and (ii) to make suggestions to the CDSCO for strengthening medical device regulation in the country. The ambit of suggestions made to the CDSCO include:

1. Medical device aspect of other Government initiatives such as Make In India,
2. Increasing the ease of doing business in India, and
3. Taking up matters with the Drugs Consultative Committee and the Drugs Technical Advisory Board- India’s apex advisory committees on drug policy and technical matters- as and when required.

The MDTAG consists of 22 members from different government departments, industry associations and prominent hospitals across the country. The MDTAG will meet with the Drugs Controller General of India (“DCGI”)- India’s apex drugs controller- once every four months and may co-opt persons from other fields as necessary.

India took its first step in medical device regulation in 2017 when the Health Ministry notified the MDR 2017 which came into force on January 01, 2018. The MDR 2017 only applies to medical devices that have been notified by the government. At the commencement of the MDR 2017, only 15 medical devices were notified by the Government while 8 other medical devices (such as blood grouping sera, condoms, surgical dressings and tubal rings) were regulated as drugs. Since then, the Health Ministry has classified 12 Additional Medical Devices bringing the total up to 27 as discussed above.[8]

 

Roadmap for Medical Devices Introduced

The DTAB accepted the recommendations of the Health Ministry to regulate all medical devices as ‘drugs’ under the D&C Act.[9] Currently, the MDR 2017 governs only 15 medical devices while 8 others were regulated as drugs. After the notification of the Additional Medical Devices, the MDR 2017 will govern 27 medical devices from April 2020.

The need for more comprehensive regulation of all medical devices has been felt for a long time. To that end, the Health Ministry constituted a committee in February 2019 (“MD Committee”) which broadly recommended that medical devices continue to be regulated under the D&C Act. The MD Committee has proposed to regulate all medical devices as drugs in a phase-wise manner as follows:

Phase I

1. All manufacturers and importers of non-regulated medical devices should register their devices on a special SUGAM portal. SUGAM is an online portal used to keep an electronic record of all medical device manufacturers and importers in the country along with the medical devices manufactured/imported by them.
2. Such registration will be voluntary for up to a period of 18 months after which it will become mandatory.
3. The importers and manufacturers must also report a serious adverse event (“SAE”), an event that results in death, hospitalization or injury of a patient, as well as adhere to the Materiovigilance Program of India (“MvPI”) to keep track of medical device SAEs.

Phase II

All low-risk devices (Classes A & B) registered during the preceding 18 month period will be required to obtain licenses within the next 12 months. Registration is required for manufacture, import and marketing the medical device.

Phase III

All high-risk devices (Classes C & D) registered during the preceding 18-month period will be required to obtain licenses within the next 24 months. Registration is required for manufacture, import and marketing the medical device.

The proposed definition of medical devices in the D&C Act includes all medical devices including a software or an accessory, intended by its manufacturer to be used specifically for human beings or animals which does not achieve the primary intended action in or on human body or animals by any pharmacological or immunological or metabolic means but which may assist in its intended function by:

1. Diagnosis, prevention, monitoring, treatment or alleviation of any disease or disorder,
2. Diagnosis, monitoring, treatment, alleviation or assistance for, any injury or disability,
3. Investigation, replacement or modification or support of the anatomy or of a physiological process,
4. Supporting or sustaining life,
5. Disinfection of medical devices, and
6. Control of conception.

Temporary exemption will be provided to the above medical devices notified under the above provision during the 18-month registration period. The Health Ministry has already released a draft notification seeking to initiate the registration process.

The MD Committee also proposed creating a medical device vertical under the CDSCO to bring in additional manpower for regulating medical devices.

The medical device vertical will be created under DCGI and will be headed by an Additional Drugs Controller.

Made withVisme

 

Industry insiders labelled the MD Committee report as a missed opportunity to regulate medical devices separately from drugs. The Medical Technology Association of India has opined that “medical devices are generically different from drugs and cannot be treated as drugs in the long run.” Medical devices require separate regulation for drugs due to the manner in which they are developed, marketed and deployed in a patient by a doctor.[10]

 

Conclusion

The regulatory future of medical devices in India was given a definitive direction when the MDR 2017 brought into force at the beginning of last year even though the implementation of the MDR 2017 was progressing at a sluggish pace.

With India’s drug regulatory authority releasing their roadmap for medical device regulation and notifying additional medical devices, it is clear that the Government fully intends to regulate all medical devices within the next two years. The question for the rest of 2019 and beyond is whether continuing to regulate medical devices under the same parent legislation as drugs is sustainable in the long run.

 

References

[1] Notice by Central Drugs Standards Control Authority dated May 15, 2019, available at: https://cdsco.gov.in/opencms/opencms/system/modules/CDSCO.WEB/elements/download_file_division.jsp?num_id=NDM5Ng== (Accessed August 15, 2019).

[2] Notification by the Health Ministry dated October 16, 2019, available at: http://egazette.nic.in/WriteReadData/2019/213288.pdf (Accessed October 24, 2019).

[3] Minutes of 82^nd DTAB Meeting held on April 04, 2019 available at: https://cdsco.gov.in/opencms/opencms/system/modules/CDSCO.WEB/elements/common_download.jsp?num_id_pk=ODc5 (Accessed August 15, 2019).

[4] News article on ‘Government readies compensation plan for patients affected by faulty devices’, available at: https://www.livemint.com/companies/news/govt-readies-compensation-plan-for-patients-affected-by-faulty-devices-1564076726975.html (Accessed August 15, 2019).

[5] Minutes of 81^st DTAB Meeting held on November 29, 2018 available at: https://cdsco.gov.in/opencms/opencms/system/modules/CDSCO.WEB/elements/common_download.jsp?num_id_pk=NTY2 (Accessed August 15, 2019).

[6] Ibid.

[7] Office Order by Directorate General of Health Services dated July 22, 2019, available at: https://cdsco.gov.in/opencms/opencms/system/modules/CDSCO.WEB/elements/download_file_division.jsp?num_id=NDcwNg== (Accessed August 15, 2019).

[8] Notice by Central Drugs Standards Control Authority dated May 15, 2019, available at: https://cdsco.gov.in/opencms/opencms/system/modules/CDSCO.WEB/elements/download_file_division.jsp?num_id=NDM5Ng== (Accessed August 15, 2019).

[9] Minutes of 82^nd DTAB Meeting held on April 04, 2019 available at: https://cdsco.gov.in/opencms/opencms/system/modules/CDSCO.WEB/elements/common_download.jsp?num_id_pk=ODc5 (Accessed August 15, 2019).

[10] News article on ‘The road not taken: a missed chance for medical devices’, available at: https://www.thehindubusinessline.com/specials/pulse/the-road-not-taken-a-missed-chance-for-medical-devices/article26959008.ece (Accessed August 15, 2019).

Also from this Legal Handbook

2019 so far has witnessed a lot of activity in the pharma space, so much so that the e-pharmacy saga – a pressing development towards the close of 2018 – has taken a temporary backseat this year. Instead, the new stars of 2019 so far have been price regulation and regulation of electronic nicotine delivery systems. 2019 also saw a significant piece of legislation introduced – the New Drugs and Clinical Trial Rules, 2019 – which has already begun making waves in the industry.

Some of the major developments that have taken place so far are captured below:    

 

Indian Government Notifies New Clinical Trial Regime

The Ministry of Health and Family Welfare (“Health Ministry”) has notified the New Drugs and Clinical Trials Rules, 2019 (“New Drugs & CT Rules”) to replace the existing regulatory framework governing clinical trials in India under the Drugs and Cosmetics Rules, 1945 (“D&C Rules”).[1] The New Drugs & CT Rules are more comprehensive and broader in scope than existing regulation under Schedule Y of the D&C Rules (“Old CT Rules”). The New Drugs & CT Rules retain certain existing provisions from the earlier regime, such as for the establishment of an ethics committee to oversee clinical trials and the requirement to conduct a clinical trial in four stages.

Some significant additions in the New Drugs & CT Rules include provisions for bioavailability and bioequivalence studies as well as the requirement for including clinical trial participants from pediatric and geriatric populations in the study if the drug is intended to treat conditions that specifically affects such populations.

Another significant addition to the New Drugs & CT Rules is the relaxation of the requirement for conducting local clinical trials of all drugs. Under the old CT Rules drugs approved in foreign jurisdictions were required to undergo clinical trials locally in India before they could be marketed in the country. Under the New Drugs & CT Rules, however, local clinical trials are not required to be considered for drugs marketed in foreign jurisdictions that recognized by the Health Ministry or in respect of orphan drugs.

The New Drugs & CT Rules also introduce the concept of ‘investigational new drug’ as a substance that has not been approved for marketing as a drug in any country and ‘orphan drug’ as a drug that is intended to treat a condition which affects less than half a million persons in India. The New Drugs & CT Rules also provide regulators with the option of waiving the requirement to conduct clinical trials in certain cases, such as for drugs which have already been approved in specified developed countries.

The New Drugs & CT Rules have been welcomed by the industry as they are expected to clarify, streamline and shorten the timelines for conducting clinical trials in India.

 

Government is in Process of Revising and Updating the National List of Essential Medicines

The Health Ministry has reportedly conducted the first stakeholders meeting with the Standing National Committee on Medicine (“SNCM”) to revise the National List of Essential Medicines (“NLEM”).[2] The NLEM is a list of medicines that satisfy the priority healthcare needs of a population. The SNCM has been constituted by the Health Ministry to revise the NLEM every few years.

The Health Ministry first took up the mantle of revising the NLEM in February earlier this year and has concluded a meeting with stakeholders in the last week of July. A medicine is added in the NLEM if it is:

1. Essential for the treatment of a disease or illness prevalent in the population;
2. Safe and efficacious for the treatment of such disease;
3. Cost-effective for the treatment; and
4. Feasibility in context of advantage and cost-effectiveness i.e. an essential medicine should be available in a form in which adequate quality throughout its shelf-life under recommended storage conditions is ensured.;

Unlike previous years, the terms of reference of the SNCM include not only medicines and medical devices but also ‘other products used for the health and hygiene of the public’.[3] In pursuance of this mandate, the SNCM has reportedly shortlisted hygiene products such as soap, adult diapers, sanitary napkins, hospital hand gloves, floor disinfectant and operation theater gum boots to add to the NLEM.[4] Generally, products in the NLEM are subject to price control under the Drugs (Prices Control) Order, 2013(“DPCO”)- India’s drug price control legislation. However, the Government has expressed the intention to de-link the NLEM from automatic price control.[5] As a result, items listed in the NLEM will be brought under price control only upon the recommendation of a second committee.

The NLEM was first drawn up in 1996 and has been revised every few years since. The NLEM was last revised in 2015. Earlier, the medicines listed in the NLEM were subject to price control under the DPCO. The prices of formulations in the NLEM were fixed by the National Pharmaceutical Pricing Authority (“NPPA”)- the apex authority for drug price control in India. It remains to be seen the role the NPPA will play in regulating the prices of items under the NLEM after the new NLEM is finalized.

 

Indian Government Caps Prices of Anti-Cancer drugs

The NPPA has reduced the prices of nine cancer drugs by way of an office memorandum (“OM”).[6] The OM is the latest addition in a growing list of cancer drugs that the NPPA has brought under the price control by capping trade margins on such drugs at 30%. The NPPA first capped the trade margin of 32 cancer drugs through an order dated February 27, 2019 (“Order”).[7] Since then, over 450 drugs have been added to Order.[8] According to the government, the price cut is expected to benefit 2.2 million cancer patients in India and result in annual savings of INR 8 billion.[9]

The trade margins of the cancer drugs were capped under Paragraph 19 of the DPCO– the order passed under the Essential Commodities Act, 1955 (“EC Act”) which empowers the NPPA to regulate the prices of drugs and certain medical devices. The DPCO lists out certain drugs under its schedule (referred to as Scheduled Formulations), which are based on the National List of Essential Medicines. The NPPA fixes the ceiling prices of all Scheduled Formulations based on a prescribed formula under the DPCO. Drugs that are not covered under the Schedule to the DPCO – non-scheduled formulations – are restricted from having a price increase by more than 10% over the previous year.

The cancer drugs for which trade margins were capped are non-scheduled formulations, and technically not subject to a price ceiling that is prescribed by the NPPA. However, the trade margins were capped under Paragraph 19 of the DPCO – which gives the NPPA the power to fix the price of any drug (regardless of whether they are Scheduled or non-Scheduled Formulations) in any manner as it deems fit, in case of extra-ordinary circumstances and in the public interest.

 

India Proposes to Make Marketers of Drugs Responsible for Quality of Drugs and Regulatory Compliances

The Health Ministry published a notification on June 24, 2019 proposing to amend D&C Rules–framed under India’s primary drug control legislation, the Drugs & Cosmetics Act, 1940 (“D&C Act”), such that entities marketing a drug are responsible for the quality of the drug as well as for carrying out regulatory compliances (“Proposed Amendment”).[10]

In India, a common business model is for companies to outsource the manufacturing activity for their drug to a third-party manufacturer, such that for the purposes of regulation, the third party is considered the manufacturer while the outsourcing party is considered the marketer of the drug. Currently, the D&C Rules hold only the manufacturer of the drug liable for any defects in the drug or for gaps in compliance, and not the marketing company. The Proposed Amendment aims to ensure that pharmaceutical companies that contract out the manufacturing activity are also responsible for compliance with the quality standards and compliances under the D&C Rules.

 

India Introduces A Proposal to Regulate Electronic Nicotine Delivery Systems as Drugs

The Ministry of Law and Justice (“Law Ministry”) issued an ordinance on September 18, 2019 banning the production, manufacture, import, export, transport, sale, distribution, storage and advertisement of e-cigarettes (“Ordinance”). The Ordinance also requires persons who are in possession of e-cigarettes to deposit such e-cigarettes with a police officer.[11]

Currently, the Ordinance has been challenged before the Calcutta High Court by an importer of e-cigarettes (“Petitioners”). The Petitioners before the Calcutta High Court have contended that e-cigarettes should be treated as any other Nicotine Replacement Therapy and are currently being unfairly and arbitrarily singled out. The Petitioners are also expected to place evidence before the Calcutta High Court to demonstrate that e-cigarettes pose fewer health risks as compared to combustible cigarettes and cigars.

The Health Ministry has been in the process of regulating ENDs for almost a year now. In August 2018, the Health Ministry issued an advisory to all Indian States and Union Territories to ensure that ENDs were not sold in their territory (through brick-and-mortar stores or online), except in accordance with the provisions of the D&C Act (“Advisory”) [12] as well as sending an internal communication to all state drug controllers requiring them to ensure that ENDs are sold in accordance with the D&C Act (“Communication”).[13]  Since then, the Central Board of Indirect Taxes and Customs has also issued a circular to India’s customs authorities asking such authorities to ensure the Advisory is implemented (“Circular”).[14] However, the validity of the Circular and Communication were challenged in the Delhi High Court, where it has been stayed.[15] The Delhi High Court, while ruling on the interim stay, held that ENDs do not appear to be drugs on the face of it. The Bombay High Court, in another matter relating to the Advisory, placed reliance upon the decision of the Delhi High Court and passed an interim order directing the Maharashtra Food & Drug Authority to not take any action against the petitioner who is a manufacturer of e-cigarettes.[16] The cases before the Delhi High Court and the Bombay High Court are currently pending. However, since the Ordinance has come into force any order made by these courts regarding the constitutionality of the Communication and Circular be infructuous unless the Ordinance is also declared unconstitutional.

Currently, some nicotine products such as nicotine gums and nicotine transdermal therapeutic patches are regulated as drugs under the D&C Act. Such products will continue to be sold as only ENDs have been banned and not nicotine altogether.

 

Government Notifies Date for Labeling Norms to Come into Force

The Health Ministry by way of notification dated March 20, 2019 (“Enforcement Notification”) stated that labeling norms first notified on April 26, 2018 (“Original Notification”) would come into force on April 01, 2019 (“Enforcement Date”).[17] Before the Enforcement Notification, compliance with the Original Notification was on voluntary basis. However, from the Enforcement Date, compliance with the Original Notification became mandatory.[18]

The Original Notification seeks to amend the labeling requirements of drugs as stipulated in the D&C Rules.[19] The Original Notification amends the labeling declarations that are required to made in respect of drugs specified in Schedules G, H, X and H1.

The CDSCO has been taking labeling violations more seriously than before. Earlier this year, the cosmetics division of the CDSCO canceled the import license of a cosmetics importer for labeling violations.[20]

 

Health Ministry proposes to implement track and trace mechanisms for bulk drugs

The Health Ministry published a notification on August 08, 2019 proposing to amend the D&C Rules such that all bulk drugs manufactured in India or imported into India have a quick response (“QR”) code on their label at each level of packaging (“Proposed Amendment”). As per the Proposed Amendment, data stored on the QR code should contain the product identification code, name and details of the bulk drug, details of the manufacturer or importer and any special requirements for storing or transporting the drug.

The Proposed Amendment is based on a recommendation made by the Drugs Technical Advisory Board (“DTAB”) – India’s apex advisory board on technical matters relating to drugs in April 2019.[21] In May 2018, the DTAB also proposed the introduction of a track and trace system to be implemented by 300 major pharmaceutical brands on a voluntary basis.[22] Efforts to implement serialization in respect of pharmaceutical products were first made in 2015 when the Health Ministry put forth a proposal to require all manufacturers of drug formulations to print barcodes on all primary, secondary and tertiary packaging of drugs.[23] However, this proposal was never brought into force.

Serialization/track and trace requirements is also set be applicable to drugs exported out of India starting from April 01, 2020. However, this requirement will be enforced by the Ministry of Commerce and Industry, as opposed to the Health Ministry that is otherwise in charge of regulating drugs.[24]

 

Conclusion

We hope to achieve more clarity with respect to some of the above-mentioned such as the status of the e-cigarettes, e-pharmacies and the requirements of QR codes on drug packaging by the end of the year. The Indian pharma industry is poised to grow exponentially in the coming few years. We are seeing an increase in government support and encouragement towards pharma companies, especially with respect to start-ups. We are excited to see what the rest of 2019 has in store for us!

 

References

[1] Notification dated March 19, 2019 by Ministry of Health and Family Welfare, available at: https://cdsco.gov.in/opencms/opencms/system/modules/CDSCO.WEB/elements/download_file_division.jsp?num_id=NDU0Mg== (Last Accessed August 15, 2019).

[2] News article on ‘Health ministry to conduct first stakeholders meet for revision of NLEM 2015 on July 25’, dated July 24, 2019 available at: http://pharmabiz.com/NewsDetails.aspx?aid=117114&sid=1 (Last Accessed August 15, 2019).

[3] Order by Ministry of Health and Family Welfare dated July 03, 2018, available at: https://cdsco.gov.in/opencms/opencms/system/modules/CDSCO.WEB/elements/common_download.jsp?num_id_pk=NTc= (Last Accessed August 15, 2019).

[4] News article on ‘Government shortlists hygiene products to be brought under price control’, dated August 25, 2019 available at: https://www.livemint.com/science/health/government-shortlists-hygiene-products-to-be-brought-under-price-control-1566710834857.html (Last Accessed August 15, 2019).

[5] News article on ‘Adding hygiene products to NLEM won’t lead to their price control: Govt’, dated August 26, 2019 available at: https://www.thehindubusinessline.com/economy/adding-hygiene-products-to-nlem-wont-lead-to-their-price-control-govt/article29261897.ece (Last Accessed August 15, 2019).

[6] Office Memorandum by National Pharmaceutical Pricing Authority dated May 15, 2019, available at: http://www.nppaindia.nic.in/wp-content/uploads/2019/05/Scan0114.pdf (Last Accessed August 15, 2019).

[7] Order by National Pharmaceutical Pricing Authority dated February 27, 2019, available at: http://egazette.nic.in/WriteReadData/2019/198807.pdf (Last Accessed August 15, 2019).

[8] Revised MRP of non-scheduled cancer medicines by National Pharmaceutical Pricing Authority dated March 08, 2019, available at: http://www.nppaindia.nic.in/wp-content/uploads/2019/03/Brands-List-for-OM.pdf (Last Accessed August 15, 2019).

[9] Press Information Bureau release dated March 08, 2019, available at: http://pib.nic.in/newsite/PrintRelease.aspx?relid=189343 (Last Accessed August 15, 2019).

[10] Notification dated June 24, 2019 by Ministry of Health and Family Welfare, available at: http://egazette.nic.in/WriteReadData/2019/206108.pdf (Last Accessed August 15, 2019).

[11] Ordinance dated September 18, 2019 by the Ministry of Law and Justice, available at: http://egazette.nic.in/WriteReadData/2019/212582.pdf (Last Accessed October 24, 2019).

[12] Advisory dated August 28, 2018 by Ministry of Health and Welfare, available at: https://mohfw.gov.in/newshighlights/advisory-electronic-nicotine-delivery-systems-ends-including-e-cigarettes-heat-not (Last Accessed August 15, 2019).

[13] News article dated December 28, 2018 on Govt restricts import of e-cigarettes available at:  https://www.thehindubusinessline.com/economy/policy/govt-restricts-import-of-e-cigarettes/article25850299.ece.

[14]Circular dated November 27, 2018 by Central Board of Indirect Taxes and Customs, available at:  http://www.cbic.gov.in/resources//htdocs-cbec/customs/cs-circulars/cs-circulars-2018/Circular-46-2018-Customs.pdf;jsessionid=9FC34600D43298D09E3D1C265319ACC6 (Last Accessed August 15, 2019).

[15] Order by Delhi High Court dated March 18, 2019 in M/s.  Focus Brands (India) Pvt. Ltd. & Anr. v. Directorate General of Health Services & Ors. W.P.(C) 2688/2019 (Last Accessed August 15, 2019).

[16] Order by Bombay High Court dated July 30, 2019 by Bombay High Court in Godfrey Philips India Ltd. & Anr. V. The State of Maharashtra & Ors. W.P.(C) 3690 of 2019 (Last Accessed August 15, 2019).

[17] Notification dated March 20, 2019 by Ministry of Health and Family Welfare, available at: http://egazette.nic.in/WriteReadData/2019/200553.pdf (Last Accessed August 15, 2019).

[18] Ibid.

[19] Notification dated April 26, 2018 by Ministry of Health and Family Welfare, available at:  http://egazette.nic.in/WriteReadData/2018/185026.pdf (Last Accessed August 15, 2019).

[20] Order by the Cosmetics Division of the Central Drugs Control Organization dated June 17, 2019, available at:  https://cdsco.gov.in/opencms/opencms/system/modules/CDSCO.WEB/elements/download_file_division.jsp?num_id=NDUwNw== (Last Accessed August 15, 2019).

[21] Minutes of Meetings of the 82^nd Drugs Technical Advisory Board held on April 02, 2019, available at: https://cdsco.gov.in/opencms/opencms/system/modules/CDSCO.WEB/elements/common_download.jsp?num_id_pk=ODc5 (Last Accessed August 15, 2019).

[22] Minutes of Meetings of the 79^th Drugs Technical Advisory Board held on May 16, 2018, available at: https://cdsco.gov.in/opencms/opencms/system/modules/CDSCO.WEB/elements/common_download.jsp?num_id_pk=NTY4 (Last Accessed August 15, 2019).

[23] Notification dated June 03, 2015 by Ministry of Health and Family Welfare, available at: http://egazette.nic.in/WriteReadData/2015/164394.pdf (Last Accessed August 15, 2019).

[24] Public Notice 16/2015-20 by Directorate General of Foreign Trade  dated July 04, 2019, available at: https://dgft.gov.in/sites/default/files/PN%2016%20dt.%204.07.2019%20Eng_3.pdf (Last Accessed August 15, 2019).

Also from this Legal Handbook

The Indian Government has had a busy 2019 so far with respect to healthcare regulation. From passing the controversial National Medical Commission Bill, 2019 through Parliament to releasing a digital health blueprint, the Indian Government has had a very clear vision for the future of healthcare in India. That vision largely focuses on health services being controlled and administered centrally, with states playing supporting roles in this process. The Government is also encouraging and regulating alternative forms of medicine such as Ayurveda and Homoeopathy.

 

National Medical Commission Act Has Come into Force

The National Medical Commission Act, 2019 (“NMC 2019”) has partially come into force after certain provisions were notified by the Government.[1] The NMC 2019 was passed in the Indian Parliament amid strong opposition from both the Parliament (including a walkout by some opposition parties) and the medical fraternity.[2] The NMC 2019 will repeal the Indian Medical Council Act, 1956 (“IMC Act”) which comprises the current regulatory framework governing medical colleges and the medical practice in India.[3] The NMC 2019 has established the National Medical Commission to replace  the Medical Council of India (“MCI”)- the current body regulating the medical profession in India. Legislation to replace the MCI was first introduced in the Lok Sabha in 2017 through the National Medical Commission Bill, 2017 (“NMC 2017”). The NMC 2017 was however referred to a Parliamentary Standing Committee following stiff opposition from the Indian Medical Association (“IMA”) against a provision in the NMC 2017 which would allow practitioners of Ayurveda, Siddha, Unani and Homoeopathy to practice modern medicine after undertaking a bridge course (“Bridge Course Provision”).[4] The Bridge Course Provision has been omitted from the NMC 2019.

Some of the key provisions in and differences between the IMC Act and the MCI 2019 are as follows.

Criteria	IMC Act	NMC 2019
Governing Body	Medical Council of India	National Medical Commission
Appointment of governing body	Most MCI members are elected from within the medical fraternity.	The Central Government appoints all members of the NMC.
Composition of Governing Body	·       One member from each state other than a union territory is nominated by the Central Government in consultation with the State concerned. ·       One member from each university (having medical faculty) elected by such university. ·       One member from each state elected by persons eligible to practice medicine in the respective state. ·        Seven members elected by persons eligible to practice medicine in any Indian State. ·       Eight members nominated by the Central Government.	·       Chairperson appointed by the Central Government. ·       President of the Under-Graduate Medical Examination Board. ·       President of the Post-Graduate Medical Examination Board. ·       President of the Medical Assessment and Rating Board. ·       President of the Ethics and Medical Registration Board. ·       The Director General of Health Services. ·       The Director General of the Indian Council for Medical Research. ·       A Director of any of the All India Institutes of Medical Sciences. ·       Two persons from amongst the Directors of some prominent medical colleges. ·       One person to represent the Ministry of Health and Family Welfare. ·       14 part time members.
Recognition of Medical Colleges	Any person wishing to establish a medical college in India must obtain approval from the Central Government for doing so. The Central Government grant permission based on the recommendation made by the MCI in this regard.	The Medical Assessment and Rating Board will grant permission for establishing a new medical college and determine the procedure for assessing and rating existing medical institutions.
Regulation of Medical Qualifications	Establishment of a uniform entrance examination to all medical institutions at undergraduate and postgraduate level.	Under-graduate admissions will happen on the basis of a National Eligibility-cum-Entrance Test (“NEET”). All final year undergraduate students will have to appear for the National Exit Test (“NEXT”) shall be held for granting license to practice medicine. The NEXT will also be the basis for admission to post-graduate courses and serve as a qualifying test for persons possessing foreign medical qualifications to practice in India.

 

Currently, there is still considerable tension in the medical fraternity over the provisions relating to Community Healthcare Providers (“CHP Provision”). The CHP Provision empowers the NMC to grant a limited license to practice medicine to persons connected with the modern scientific medical profession.[5] The IMA believes that the CHP Provision will encourage and legitimize quackery in the medical profession.[6] The medical fraternity has also objected to a provision in the NMC 2019 which allows the Central Government to completely override the NMC at will.[7]

After the passage of the NMC 2019 in Lok Sabha (the lower house of India’s Parliament) on the IMA had called for a 24-hour withdrawal of non-essential.[8] After the passage of the NMC 2019 in the Rajya Sabha (the upper house of India’s Parliament) protests only intensified.[9] Doctors have called off the strike after meeting with the Health Minister of India Dr. Harsh Vardhan who assured them their concerns would be addressed. Nonetheless, skepticism over the NMC 2019 remains.

 

Indian Courts Spur Government to Take Action On Rare Disease Policy

The Delhi High Court, in Mohd. Kalim v. Employees State Insurance Corporation & Ors[10]., (“Delhi HC Case”) has directed the Ministry of Health and Family Welfare (“Health Ministry”) to frame policy for the treatment of rare diseases. The Delhi HC Case was disposed of in April 2019 as the Petitioners received the treatment required during the pendency of the Delhi HC Case. However, in earlier hearings the Delhi High Court did direct the Health Ministry to come up with a permanent policy to provide financial assistance to persons suffering from rare diseases.

Currently India does not have a rare disease policy in place.[11] The Health Ministry had published a policy titled the National Policy on Treatment of Rare Diseases 2017 (“NPTRD/Policy”) which was subsequently withdrawn.[12] The NPTRD promised a corpus or INR 1 billion for the treatment of patients with rare genetic diseases, many of them children. According to the Health Ministry the NPTRD is in abeyance as the Policy was being handled by the Public Health Division which is a state body. The Health Ministry has since transferred all matters relating to rare/genetic diseases to the National Health Mission.[13]

The Health Ministry has stated before the Delhi High Court that it is in process of framing a new policy dealing with rare diseases and is looking at foreign legislations such as the United States of America’s Orphan Drug Act, 1983, the European Union’s Orphan Medicinal Product Regulation, 1999[14] as well as legislations and policies prevalent in Japan, Australia and Israel.

In the past, the Delhi High Court in Mohd. Ahmed (Minor) v. Union of India[15] formally recognized the constitutional obligation of the Government to ensure access to life saving medicines. Additionally, the Delhi High Court also directed the Delhi Government to provide enzyme replacement therapy worth INR 600,000 per month free-of-cost for the treatment of the rare disease gaucher to the patient in question. Currently, India has a one-time financial assistance program in place for treatment of rare diseases.

 

India Invites Public Comments on The Draft National Digital Health Blueprint Report

The Health Ministry has released the draft National Digital Health Blueprint Report (“Digital Health Report”) inviting comments from the public.[16] The Digital Health Report was prepared in pursuance of National Health Policy 2017 which identifies the extensive deployment of digital tools and technology to enhance health system performance as one of its goals. One of the corner stones of the Digital Health Report is the establishment of state-of-the-art system in order to manage core digital health data along with the infrastructure to share the data seamlessly. The Digital Health Report also proposes the creation of the state-of-the-art National Digital Health Eco-System (“NDHE”) to help avoid some of the pitfalls experienced by the developed countries when they were first implementing digital health. The NDHE also aims to support universal health coverage in an efficient, accessible, inclusive, affordable, timely and safe manner, through provision of a wide-range of data, information and infrastructure services, duly leveraging open, interoperable, standards-based digital systems, and ensuring the security, confidentiality and privacy of health-related personal information.

Part of the NDHE is the creation of a National Health Stack (“NHS”) as recommended by the NITI Aayog, which is a policy think tank of the Government of India. The NHS is a set of core building blocks to be “built as a common public good” that helps avoid duplication of efforts and achieve convergence among the IT systems of the diverse stake holders such as the Governments, the Payers, the Providers and the Citizens. The NHS prioritizes data safety, privacy and confidentiality and aims to establish a mechanism to incorporate these elements ab-initio into the architecture.

 

India Establishes Draft Minimum Standards for Clinical Establishments

The Health Ministry has released a draft notification proposing to amend the Clinical Establishment (Central Government) Rules, 2012 (“Draft Notification”) framed under the Clinical Establishments (Registration and Regulation) Act, 2010 (“CERA Act”) which govern the formation of and establish standards for clinical establishments in the country.[17] The Draft Notification aims to revise the minimum standards for allopathy and Ayurveda, Yoga, Siddha, Unani, Homoeopathy, Naturopathy and Sowa Rigpa (“AYUSH”) clinics in India.

For allopathy clinics, the Draft Notification sets standards for general clinical establishments as well as super-specialty clinical departments. The general clinical establishments covered under the Draft Notification are:

1. Clinic or Polyclinic: only consultation, with dispensary, with diagnostic support and with observation facility;
2. Mobile clinic: only consultation, with procedures and dental mobile;
3. Hospitals;
4. Health check-up centre;
5. Dental lab;
6. Physiotherapy;
7. Dietetics; and
8. Integrated Counseling Centre.

The Draft Notification also identifies over 35 super-specialty clinics such as anesthesiology, pediatrics, cardiology, dermatology, gastroenterology, psychiatry services, radiology and endocrinology among others.

The Draft Notification is unique in making provisions for patient rights and responsibilities when prescribing standards for clinical establishments. Some of the patient rights are:

1. To obtain adequate, relevant information about the nature, cause of illness, proposed investigations and care, expected results of treatment, possible complications and expected costs;
2. Rate of services;
3. Access to a copy of case papers;
4. To choose alternative treatments if options are available;
5. Confidentiality, human dignity and privacy;
6. To seek a second opinion; and
7. To have a female person present during physical examination of a female patient by a male practitioner.

At present, minimum standards are available only for medical diagnostic labs which were notified in May 2018.[18] However, enforcement of the CERA Act differs from state to state as the subject of health can be legislated upon only by the States as per the Constitution of India. Therefore, healthcare cannot be legislated upon by the Central Government. Currently, the States of Arunachal Pradesh, Uttar Pradesh, Uttarakhand, Rajasthan, Bihar, Jharkhand, Himachal Pradesh, Mizoram, Sikkim and all Union Territories except the NCT of Delhi are governed under the CERA Act.

 

Conclusion

From the developments of 2019 so far, the Central Government has shown a keen inclination to regulate the healthcare sector despite facing some resistance at the state level. Currently, healthcare regulation in India varies from state to state which can make compliance and implementation complex. However, a unifying force in the form of central model legislation and policy to guide states in regulating the healthcare sector can make all the difference.

 

References

[1] NMC Act 2019, available at: http://egazette.nic.in/WriteReadData/2019/210357.pdf (Last Accessed August 15, 2019), Notification dated September 02, 2019 by the Health Ministry, available at: http://egazette.nic.in/WriteReadData/2019/211946.pdf (Last Accessed October 24, 2019).

[2] News article on ‘Lok Sabha Passes National Medical Commission Bill, available at: https://www.indiatoday.in/india/story/lok-sabha-passes-national-medical-commission-bill-1574946-2019-07-29 (Last Accessed August 15, 2019).

[3] News article on ‘Lok Sabha Passes National Medical Commission Bill, available at: https://www.indiatoday.in/india/story/lok-sabha-passes-national-medical-commission-bill-1574946-2019-07-29 (Last Accessed August 15, 2019).

[4] News article on ‘Government Plans to Re-introduce National Medical Commission Bill’, available at: https://www.thehindubusinessline.com/news/govt-plans-to-re-introduce-national-medical-commission-bill/article27762134.ece (Last Accessed August 15, 2019).

[5] S.32 NMC 2019.

[6] News article on ‘Indian Medical Association calls for strike’ available at: https://www.livemint.com/news/india/indian-medical-association-calls-strike-on-8-august-to-protest-against-nmc-bill-1565006894181.html (Last Accessed August 15, 2019).

[7] S.45 NMC 2019.

[8] News article on ‘IMA calls country-wide strike’ available at: https://www.theweek.in/news/india/2019/07/30/IMA-calls-countrywide-strike-on-July-31-against-passage-of-NMC-Bill-in-Lok-Sabha.html (Last Accessed August 15, 2019).

[9] News article on ‘IMC calls Indian Medical Association Calls Strike on 8 August to protest against NMC Bill, available at:  https://www.livemint.com/news/india/indian-medical-association-calls-strike-on-8-august-to-protest-against-nmc-bill-1565006894181.html (Last Accessed August 15, 2019).

[10] W.P.(C) 8445/2014.

[11] News article on ‘India’s Rare Disease Policy Hangs in the Balance’, available at: https://www.downtoearth.org.in/news/health/india-s-rare-diseases-policy-hangs-in-balance-62611 (Last Accessed August 15, 2019).

[12] Notification dated December 18, 2018 by the Health Ministry keeping the National Policy on Treatment of Rare Diseases in abeyance, available at:  https://mohfw.gov.in/sites/default/files/National-policy-for-Treatment-of-Rare-Diseases.pdf (Last Accessed August 15, 2019).

[13] Office Memorandum dated August 01, 2018 by Ministry of Health and Family Welfare transferring rare disease matters to the NHM division, available at: https://mohfw.gov.in/sites/default/files/OMdatedAug2018.pdf (Last Accessed August 15, 2019).

[14] Regulation (EC) No 141/2000 of the European Parliament and of the Council of 16 December 1999 on orphan medicinal products

[15] W.P.(C) No 7279 of 2013.

[16] National Digital Health Blueprint Report, available at:  https://mohfw.gov.in/sites/default/files/National_Digital_Health_Blueprint_Report_comments_invited.pdf (Last Accessed August 15, 2019).

[17] Draft notification amending the Clinical Establishment Rules, available at: https://mohfw.gov.in/newshighlights/draft-notification-clinical-establishment-central-government-third-amendment-rules (Last Accessed August 15, 2019).

[18] News article on ‘Health Ministry Proposes Minimum Standards for Clinical Establishments’, available at: https://www.business-standard.com/article/pti-stories/health-ministry-proposes-minimum-standards-for-clinical-establishments-119072100291_1.html (Last Accessed August 15, 2019).

Also from this Legal Handbook

Anay Shukla leads the pharmaceutical, life sciences, med-tech and healthcare practice at Nishith Desai Associates, a leading Indian law firm. In this article, he examines the benefit of the recent policy changes to price controls for innovative drugs in India. 

Unlike many other countries, India controls prices of all drugs sold in India.

 

Last month, India announced two key policy changes: First, that all patented new drugs would be exempt from all forms of price control that exist in India for a period of five years from the start of the drug’s commercial marketing. Second, that all orphan drugs would also be exempt from all forms of price control that exist in India, irrespective of their patent status or new drug status, subject to certification of the Health Ministry.

 

As expected, the decision was welcomed by both the local and multi-national pharma companies in India.

 

It is not difficult to see why. Unlike many other countries, India controls prices of all drugs sold in India. Some drugs, which the Government identifies periodically as ‘essential’ and is included within ‘National List of Essential Medicines’ (NLEM), are prescribed a ‘price ceiling’. All importers, marketers and manufacturers (for convenience, together referred to as the ‘Marketers’) of these drugs are required to sell their products at a price that is equal to, or less than, the price ceiling. Once a price ceiling is fixed, a Marketer loses the right to vary the price of its own drug and is only allowed to increase the price by a percentage that is pegged to the inflation experienced by the Indian economy in general. The inflation numbers released by the government are generic, and usually, do not reflect the increase in the cost of drug raw material and skilled human resources over time. This causes the effective price of the drug to reduce over time. In other words, Marketers of these drugs make less money from the drug in any given year than they did in the previous year. And on top of it all, even if the Marketer wants to withdraw an essential drug from the market, it is not permitted to withdraw it for a (maximum) period of eighteen months, unless the Marketer is able to convince the regulator of the substitutability of the drug, from a public health point of view. Furthermore, until the permission to withdraw is received, the Marketer is also required to maintain a steady supply of the drug to the market. This results in a ‘Hotel California’  kind of a situation, where the Marketer wants to get out, but can’t.

 

For drugs other than essential drugs, the government gives the discretion to the Marketers to fix their own prices. However, once fixed, a Marketer is not allowed to increase its prices by more than 10% in between any 12 month period, even if there is an increase in the import/manufacturing duty and other taxes during the period.

 

Broadly speaking, a drug remains ‘new’ in India only for a period of four years from the date of its marketing approval (except for biotech products such as vaccines that remain ‘new’ until notified otherwise).

 

Interestingly, the fact that a drug is not part of NLEM (i.e. it is not an essential drug) does not guarantee that its prices will not be fixed. In 2014, the regulator fixed prices of 108 diabetic and cardiovascular drugs that were not part of NLEM in public interest. In 2017, the government fixed prices of knee implant systems which was not part of NLEM in public interest. What is worse, in case of knee implants, the regulator went overboard and made it mandatory for knee implant Marketers to subsidize the cost of bone cement used in surgery as well, even though the law does not explicitly give it the power to do so.

 

To date, not many patented drugs have found a place in the list of essential drugs (notable inclusion being Sofosbuvir, popularly known as Sovaldi). However, there is no bar against such inclusion, and a populist government could do so before election time — low hanging fruit to win some new votes. The federal elections take place every five years and are in fact due to take place in a couple of months.

 

Therefore, a provision for blanket price control exemption for innovative drugs appears to be exactly what the doctor would have ordered (pun not intended) to lift the price-control-beaten spirits of the industry. It is also expected to make the Indian market attractive to foreign manufacturers. If done right, it should protect innovator companies against any price related uncertainty at least for a limited time of five years.

 

Unfortunately, the fine print of the language of the exemption brings forth certain limitations associated with claiming of the exemptions that are not immediately obvious.

 

To begin with, the exemption is specific to a drug that qualifies as both – a patented drug and a new drug. Broadly speaking, a drug remains ‘new’ in India only for a period of four years from the date of its marketing approval (except for biotech products such as vaccines that remain ‘new’ until notified otherwise). So, to claim the benefit of the exemption, a Marketer must launch its drug within four years of its marketing approval.

 

On a similar note, it is important for Marketers to understand that the exemption is not an automatic exemption, but needs to be claimed by satisfying the regulator of the Marketer’s eligibility to claim the exemption. The claim process takes a minimum of four months, and therefore, the five-year exemption window is effectively reduced by such time the regulator takes to allow the exemption, which could be as much as six months.

 

It is unlikely that current exemption covers innovative drugs that are developed through R&D undertaken outside India and that are protected by process patents.

 

There is also some ambiguity with respect to whether innovator drugs that are developed through R&D undertaken outside India, and are covered by process patent, are eligible for price exemption or not. As background, the current exemption is only an extension of an earlier exemption given to domestic manufacturers who were producing and selling drugs developed through indigenous R&D exclusively in India. The language of the earlier exemption clarified that the exemption was applicable to drugs covered by product patent only. However, this clarificatory language was omitted at the time of extension of the scope of the exemption. This led to speculation that the benefit of exemption should extend to new drugs covered by both product and process patents. However, such an interpretation ignores the fact that there is another exemption that is already available for drugs that are developed through indigenous R&D and covered by process patents. The speculative interpretation will make this pre-existing exemption redundant, and if that was the intention of the government, it would have omitted the pre-existing exemption like it omitted the clarificatory language for product patent. Therefore, it is unlikely that current exemption covers innovative drugs that are developed through R&D undertaken outside India and that are protected by process patents. Such drugs may not be eligible for a price exemption at all.

 

Lastly, it is quite likely that the price exemption for orphan drugs will exist only on paper for purely political reasons. A few weeks before the exemption for orphan drugs was announced, the Health Ministry had reportedly written to the Pharmaceutical Department requesting it to give serious consideration to a proposal to fix the price for orphan drugs sold in India. This inter-governmental communication was a logical outcome of a National Policy for Treatment of Rare Diseases 2017 (now suspended) published by the Health Ministry that had recommended the Pharmaceutical Department to “work towards affordability of drugs for rare diseases”. However, the Pharmaceutical Department did a complete U-turn on the Health Ministry’s recommendation and instead announced that orphan drugs would be eligible for price exemption, subject to certification by the Health Ministry of the ‘orphan drug’ status of the drug. The Pharmaceutical Department’s announcement reportedly caused significant embarrassment to the Health Ministry. So, given this background, it is obvious that availing the price exemption by Marketers of orphan drugs would not be easy, to say the least.

 

To sum it up, while the price control exemption for patented new drugs and orphan drugs announced recently by the Indian government brings much-needed price-relief to innovator companies that are doing or looking to do business in India, it contains some inherent limitations that could restrict the ability of such companies to make full use of the exemption. If any innovator company intends to utilize the exemption, then knowledge of these limitations should help it in arriving at a realistic estimation of monetary returns that may be expected after obtaining the exemption.

Also from this Legal Handbook

Upcoming regulatory reforms affecting Indian pharma. Prepared in association with Nishith Desai & Associates, a leading law firm in India, this is an extract from The Pharma Legal Handbook: India, available to purchase here for GBP 119.

 

1.     Are there proposals for reform or significant change to the healthcare system?

E-pharmacy regulations

The Government has recently released draft regulations that propose to create a streamlined system of licensing e-pharmacies and governing the sale of drugs online. The rules grant legal recognition to e-pharmacies and prescribes duties with respect to handling of prescriptions and protection of sensitive patient data. It states that while the data shall be kept confidential, it may be shared with the Government for public health purposes. However, e-pharmacies will not be permitted to sell psychotropic drugs i.e. drugs in Schedule X. Any complaints against e-pharmacies can be made to the State Drug Licensing Authorities.

Companies Marketing Products liable for quality

The D&C Rules have been amended with effect from March 01, 2021 such that the companies marketing the drugs will be held responsible in addition to the manufacturer. Currently, big pharmaceutical companies escape liability with respect to the quality of their drugs by contracting out manufacturing to third parties. This amendment seeks to incentivize big pharmaceutical companies marketing the drug to ensure that the manufacturer of the drug being marketed is in compliance with the law.

 

2. When are they likely to come into force?

• Comments from the public were accepted in respect of the e-pharmacy regulations and the rules are in the process of being finalized.

• The amendment that seeks to make marketing companies liable for product quality will come into effect on March 31, 2020.

 

 

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Click the following links to read more legal articles from India:

1. 1. Regulatory Pricing and Reimbursement Overview
   2. Preclinical and Clinical Trial Requirements
   3. Marketing, Manufacturing, Packaging & Labeling, Advertising
   4. Traditional and OTC Products
   5. Product Liability
   6. Patents & Trademarks
   7. Regulatory Reforms
   8. Cannabinoid Drugs, Medicinal Cannabis and Opioid Drugs
   9. Orphan Drugs and Rare Diseases
   10. Localization
   11. Biosimilars and Biologics
   12. Medical Devices
   13. Digital Health

Also from this Legal Handbook

Vital info on patents and trademarks in Indian pharma. Prepared in association with Nishith Desai & Associates, a leading law firm in India, this is an extract from The Pharma Legal Handbook: India, available to purchase here for GBP 119.

 

1. What are the basic requirements to obtain patent and trademark protection?

India’s Intellectual Property Law is TRIPS compliant. The Patents Act, 1970 and the Trademarks Act, 1999 provide protection and regulate patents and trademarks in India.

PATENTS

The requirements to obtain a patent are:

1. An application for grant of patent may be made by the inventor or the legal representatives and assignees of such inventors.
2. The application must be made to the Controller of Patents.
3. The application must contain the complete specification of the invention describing the invention and the subject matter to which it relates. A complete specification must detailed enough that a person possessing average skill and average knowledge of the art to which the invention relates should be capable of working that invention.
4. The application will then be examined by an examiner who shall inquire into whether the invention is patentable under the provisions of the Act or has been already been published or disclosed in any manner.
5. Depending upon the decision of the examiner, the patent shall either be granted by the Controller or, in case the patent is refused or an amendment to the application is required, the applicant shall be given an opportunity to be heard before a decision is made.

Patents are valid for 20 years from the date of filing the application.

TRADEMARK

1. Any person who has either been using the trademark of proposes to use the trademark may file an application with the Registrar of Trademarks to register the trademark.
2. Indian is a contracting party to the Madrid Protocol and follows the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of Registration of Trademarks. Therefore, a single application may be filed to register a trademark in multiple categories of goods.
3. The Registrar may admit the application in full or partially or reject it in entirety. In the latter two cases, an opportunity for hearing must be provided.

Trademarks are registered for a period of ten years from date of registration and can be renewed thereafter.

 

2. What agencies or bodies regulate patents and trademarks?

The Office of the Controller General of Patents, Designs and Trademarks is the regulatory body for patents and trademarks.

 

3. What products, substances, and processes can be protected by patents or trademarks and what types cannot be protected?

PATENTS

An invention to be patentable must be new, inventive and useful. The three requirements may be elaborated as follows:

1. Firstly, the invention must not be patented in India and should not be common knowledge.
2. Secondly, it must involve an inventive step i.e. the invention should be non-obvious to the person skilled in the art. The standard for this is that if a person skilled in the art is in the workshop, such person would not be able to arrive at the invention using existing knowledge. This necessitates that the invention technical advance as compared to existing knowledge and/or has economic significance.
3. The third requirement is that the invention is useful i.e. capable of industrial application. It may be noted that computer programs are not considered inventions but can be copyrighted.

A patent may not be registered if the invention is frivolous or contrary to well established natural laws or the primary use of such invention is contrary to public order and morality or is harmful to human, animal or plant life and the environment. The Act also states that “any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products” is not patentable.

 

TRADEMARKS

A trademark is defined as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colors”. Therefore, any mark fitting the above definition may be registered as long as the registration of such a mark is not prohibited under any other provision of the Act. For instance, a trademark may not be registered if it is deceptively similar to an already registered trademark, scandalous in nature, or if the trademark is merely an indication of the quality, quantity, intended purpose or the geographical origin of the goods.

 

4. How can patents and trademarks be revoked?

PATENTS

After a patent has been published but before it has been granted, any party may make an opposition to the grant of patent to the Controller. Depending upon the representations made by the parties, the Controller main maintain the patent or order that the application be amended or revoked. This is known as pre-grant opposition. The patent technically cannot be revoked in this proceeding as it has not been granted yet. Revocation of patent may be done on the petition of an interested party, the Central Government or in a case where infringement proceedings have been filed the defendant may be plead that the patent is invalid and should therefore be revoked.

Essentially, a patent may be revoked if it does not fulfil the requirements of invention as specified above or has been obtained by someone not entitled to file the application or the grant of patent is in contravention of the interests of the true inventor. Patents granted on the basis of incorrect, false, misleading or incomplete specification can also be revoked. Lastly, if the invention is already claimed in a valid claim or complete specification of an earlier date or if it is discovered that the patent has been published prior to the application date, then the patent will be revoked.

 

TRADEMARKS

Similar to patents, trademarks can also be opposed both prior to and after registration. Any person may within three months from the advertisement of the trademark but before such registration make a representation to the Registrar to oppose grant of the trademark. The Registrar will arrive at a decision after hearing both parties.

Trademarks may be cancelled by the Registrar on the following grounds.

1. The registered used has used the mark in a way that is likely to cause confusion or deception
2. The proprietor or the registered user misrepresented or failed to disclose some fact material to the application for registration
3. Circumstances have changed in such a manner that were the trademark were to be registered on the date of application for cancellation, the trademark would not have been granted.
4. Registration ought not to have been affected having regard to rights vested in the applicant by virtue of a contract in the performance of which he is interested

 

5. Are foreign patents and trademarks recognized and under what circumstances?

India is a signatory to the Patent Cooperation Treaty 1970 (PCT). Therefore, patent applications filed under the PCT will be considered as valid applications as long as a corresponding application has been filed before the Controller in India. The relevant date for the application will be the international filing date accorded under the PCT.

India is a Contracting party to the Madrid Protocol. Therefore, trademarks made through the international application are recognized in India. India also recognizes the concept of well-known marks. Therefore, a foreign well-known mark will not be permitted to be registered in India irrespective of whether such well known mark has been registered or used in India.

 

6. Are there any non-patent/trademark barriers to competition to protect medicines or devices?

A drug will continue to remain a new drug for four years after it has been approved. To import or market a new drug, the permission of the marketing authorization holder must be obtained. The rationale behind this is that the drug can thereby be studied in safe and controlled environment. However, it also gives the holder of the marketing authorization a window within which to maximize the profits from selling the drug.

For more information on what constitutes a new drug see Question 3 in the Regulatory, Reimbursement and Pricing Overview.

 

7. Are there restrictions on the types of medicines or devices that can be granted patent and trademark protection?

A new form of a known drug will not be patentable unless an increase in efficacy can be shown. Additionally, mere discovery of any new property or new use for a drug is also not patentable.

Please note that India has a robust compulsory licensing policy for drugs and devices. Under the Patents Act the Controller may grant any person a license with or without the consent of the patent holder if:

1. The reasonable requirements of the public with respect to the patented invention are not being satisfied
2. The patented invention is not available to the public at a reasonable price
3. The patented invention is not worked in the territory of India
4. 3 years have expired from the date of grant of patent

The terms of grant of the compulsory license will be determined by the Controller. Before making a decision, the Controller must look into whether the applicant for compulsory license is capable of undertaking risk, providing capital and working the invention to public advantage.

There are no restrictions on the types of medicines which may be granted trademark protection.

 

8. Must a patent or trademark license agreement with a foreign licensor be approved or accepted by any government or regulatory body?

While there were certain exchange control approval requirements in the case of foreign technology collaborations, the approval requirements were liberalized in 2009. A prior approval of a government/regulatory body is currently not required in case of a patent of trademark license agreement.

However, it is to be noted that with respect to patents, a person who acquires a share, title or interest in a patent, whether by license or otherwise, is required to apply to the Controller of Patents for registration of such title or interest.

 

 

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Click the following links to read more legal articles from India:

1. 1. Regulatory Pricing and Reimbursement Overview
   2. Preclinical and Clinical Trial Requirements
   3. Marketing, Manufacturing, Packaging & Labeling, Advertising
   4. Traditional and OTC Products
   5. Product Liability
   6. Patents & Trademarks
   7. Regulatory Reforms
   8. Cannabinoid Drugs, Medicinal Cannabis and Opioid Drugs
   9. Orphan Drugs and Rare Diseases
   10. Localization
   11. Biosimilars and Biologics
   12. Medical Devices
   13. Digital Health