EU proposed medical device regulations

Brussels, September 24-25, 2013

This article provides an analysis and interpretation of how the EU took the next step in approving the proposed medical device regulations.

Today, the EU Parliament Committee on the Environment, Public Health and Food Safety (ENVI) approved~900 amendments, estimated by Amanda Maxwell (https://www.linkedin.com/in/medtechamandamaxwell/?originalSubdomain=uk) in today’s Clinica article, to the proposed EU medical device regulations. Today’s approval by the ENVI Committee should be a warning sign that the new regulations will ultimately be approved, and this will be the most significant change in the medical device industry since the implementation of the QSR (http://bit.ly/QSRpreamble) in the 1990s.

The EU Commission originally released the amendments on September 26, 2012 (http://bit.ly/EUProposal).

Also, last night, the EU Commission announced the adoption of two new stricter rules regarding Notified Bodies (NBs) and their role in CE Marking of medical devices. The lack of resistance to controversial elements within the proposal was shocking, and the coordinated release of new Notified Body requirements should be a warning sign to the medical device industry. The European CE Marking process will be changing soon.

The Commission’s press release announced two new documents. The first is regulation for NBs. The regulation is dependent upon four things: 1) the formation of a Medical Device Advisory Committee (MDAC), 2) the formation of a Medical Device Coordination Group (MDCG), 3) the identification and qualification of Special Notified Bodies (SNBs), and 4) formation of an Assessment Committee for Medical Devices (ACMD). These new entities were passed in the compromise amendment, but these groups and committees will consist of representatives from multiple member states and NBs. This type of matrix organization will require extensive planning and preparation. Until an implementation plan is well-defined, I don’t expect a plenary vote. For now, we have a compromise that was voted on by a committee.

The second document released by the Commission is the recommendation concerning NBs performing conformity assessments. The recommendation is not limited to just unannounced audits. There are three Annexes:

1. Annex I – Product Assessment
2. Annex II – Quality System Assessment
3. Annex III – Unannounced Audits

You should also note that Annex II includes a section specific to “General advice in case of outsourcing of the production via subcontractors or suppliers.” This requirement will challenge companies that have outsourced manufacturing, and the wording of this section can easily be misinterpreted by an auditor and the NBs. Annex III also includes a requirement regarding the contractual arrangement between the NB and the manufacturer. This will force NBs to revise and execute new contracts with all their clients to allow these new conformity assessment procedures to be fully implemented.

Eucamed’s Political Positioning

On January 30, 2013, Eucamed released an industry position paper on the proposed regulations (http://bit.ly/EucamedPositionPaper). In general, the position paper supported the proposal. However, the position paper also states that it is in support of regulations that:

• ensures timely access to the latest innovative technologies and
• maintains an environment that encourages and keeps research and innovation in Europe.

On September 12, 2013, Eucamed released the results of an industry survey (http://bit.ly/CostofEURegs) stating that the proposed regulations cost 17.5 Billion Euros. The survey details indicate that implementing the Unique Device Identifier (UDI) system, improved labeling, and clinical performance data will require a 7.5 billion Euro investment. Also, industry survey respondents indicated that an additional 2.5 million Euro investment would be needed for each new Class III device that is required to undergo the proposed Scrutiny process in Article 44. The Eucamed survey was released only six days before the rescheduled ENVI vote on September 18, 2013—which was delayed for the third time until today.

Next Step in the Proposed Medical Device Regulations Approval Process

Now that the amended proposal has passed the vote, the next step is the plenary vote. This is scheduled for October 22, 2013, but there is some discussion about whether the plenary vote should occur within 21 days of the ENVI vote to comply with a previous legal ruling. October 22 does not give Parliament adequate time to make significant revisions to the compromise amendments—let alone 21 days. Therefore, I DO NOT expect the plenary vote to pass. I do not expect a vote. I expect Eucamed and industry lobbyists to be busy during the next few weeks. Opponents of the regulations will focus on three failures of the compromise amendment:

1. the implementation cost is not acceptable during a European economic crisis
2. the scrutiny mechanism in Article 44 of the proposal has the potential to delay the CE Marking of Class IIb and Class III devices by an additional 3-6 months, and the scrutiny process is guaranteed to result in more conservative NB recommendations
3. the Europeans do not want to hear a great sucking sound as research and clinical study dollars are rapidly moved from Europe to more favorable nations

Why is there a Rush?

European elections were in 2014. The government officials in the office want to approve the regulations before the elections, but it won’t happen. To address the public concern related to the PIP scandal (https://www.nhs.uk/conditions/pip-implants/), where industrial silicone was fraudulently used for breast implants, the EU Commission has finally taken actions they promised:

1. NBs are being re-evaluated according to far more stringent regulations (download Commission Implementing Regulation IP-13-854 from our website),
2. Two NBs are no longer allowed to issue new certificates, and
3. Recommendations for conducting unannounced inspections were released (yesterday), and NBs are conducting unannounced inspections (11 so far and 19 by the end of the year).

This is significant progress, but the regulations are missing a mechanism from the scrutiny process, resulting in CE Marking delays that would impact future investment in Europe and timely access to the latest medical devices. Parliament also needs time for a rebuttal of the Eucamed industry survey claiming high implementation costs.

I predict we will not see a vote for approval in Parliament on October 22. However, today’s approval by the ENVI Committee should be a warning sign. The new regulations will ultimately be approved, and this will be the most significant change in the medical device industry since the implementation of the QSR (http://bit.ly/QSRpreamble) in the 1990s.

Medical companies should be paying more attention to the proposed regulations. To comply, you must significantly change supplier quality agreements and technical documentation (i.e., technical file/design Dispenser). You should be drafting a quality plan for implementing these changes to your quality system now because it will take you more than a year to achieve compliance with these changes.

For additional information, visit the Europa website: http://bit.ly/ECUpdates.