Bend or break: increased regulatory burden for medical device Own Brand Labelling

#Bend or break: increased regulatory burden for medical device Own Brand Labelling

For medical device Own Brand Labelling (OBL) manufacturers, the regulatory requirements in Europe will change significantly with consequently major impact on the way of doing business. Right now the rules are changing and it will be a bend or break situation.
Private-label products or services are typically those manufactured or provided by one company and sold under another company's brand. This approach is used by a great variety of organizations and also within the medical device industry. In short, the OBL sells the device, while the design, manufacturing, and packaging of the medical device are executed under the full responsibility of the Original Equipment Manufacturer (OEM).

Until now, compliance to the European Medical Device Directive 93-42/EC (MDD) is secured by a CE Certificate of the product of the OEM, which is the objective evidence that the medical device complies with the requirements of the MDD. The OBL only has to generate an abbreviated Technical File (TF), based on which a Notified Body (NB) can grant a CE Certificate to the product of the OBL. The prerequisites for this approach, are that the OEM product is not modified by the OBL, the labelling is essentially identical between the OBL and OEM product and the intended use is also the same. Recently, however, a different view on conformity assessment of OBL medical devices has been developed.

EU Recommendation

It all started with the European Commission recommendation “on the audits and assessments performed by notified bodies in the field of medical devices” that was published four years ago in the Official Journal of the European Union (L253/27-35, September 25th, 2013, 2013/473/EU). Though the recommendation on unannounced inspections was thought to be non-mandatory, many manufacturers were surprised by these audits. Additionally, this recommendation zooms in on the OBL/OEM situation, as can be read in a separate paragraph with the title “General advice in case of outsourcing of the production via subcontractors or suppliers”. It is remarkable to read that the OBL’s approach described above is no longer valid according to the Commission, because “manufacturers do not fulfil their obligation to have at their disposal the full technical documentation and/or of a quality system by referring to the technical documentation of a subcontractor or supplier and/or to their quality system" (meaning, a simple statement that the OEM holds the documentation is not deemed sufficient).

Following this recommendation, the British Medicines and Healthcare Products Regulatory Agency (MHRA) published a draft guidance on this particular OBL/OEM topic last year (Own Brand Labelling, Version 1.0, April 22nd, 2016). In this guidance, the Commission’s recommendation was fully embraced by the MHRA. In the introduction, it is also stated that review of an abbreviated Technical File was not deemed feasible not only by the British authority but also by the other EU Member States. The MHRA is quite clear and detailed on the responsibilities of the OBL with respect to compliance to the current MDD, and any OBL manufacturer will recognize that this will increase the workload of its regulatory department. The MHRA ends the guidance with a cliffhanger:“MHRA recognizes that in some cases Notified Bodies will take different views regarding own brand label and original manufacturers.”. This draft guidance was replaced just last month by a final guidance. Although the title has changed to “Virtual Manufacturing replaces Own Brand Labelling for medical device manufacturers” (Version 1.0, March 2017),the goal of the guidance remains unchanged. So the main question right now is: What are the Notified Bodies doing about this??

What now?

Although it is too early to speak of a game change, it is apparent that (some) Notified Bodies are already following suit to the Commission’s recommendation and the MHRA guidance. This is understandable because both institutions are of high reputation. It is also understandable from another perspective; the current legislation for medical devices will soon be succeeded by the so-called Medical Device Regulation (MDR). The MDR is much more detailed and clearer on many issues than the MDD. One of these issues is that the text of the Medical Device Regulation (MDR) supplements the lack of clarity in the Medical Device Directive on the roles and responsibilities of an OBL. Article 10(4) of the Regulation does not leave much room for the OBL, as it reads “Manufacturers of devices other than custom-made devices shall draw up and keep up to date technical documentation for those devices.”; no exceptions are granted for the OBL. The Regulation will be published in May this year and it is not expected that there will be any changes in this part of the proposed text as known today. So it is understandable that Notified Bodies will already tune their conformity assessment approach to the successor of the MDD.

One of the reasons to generate the MDR is given in the preamble of this regulatory document: “At the same time, this Regulation sets high standards of quality and safety for medical devices to meet common safety concerns regarding these products”, which is easily understood when one recalls the fraud case in France regarding leaking breast implants and the turmoil it created throughout Europe. The MDR will fully replace the current medical device legislation, i.e. the MDD, within a three-year transition period. During this transition period, a medical device manufacturer has the choice to either comply with the MDD or with the new MDR, and the CE Certificate issued by the Notified Body will refer to the chosen legislation. But it can be expected that some Notified Bodies will already enforce the stricter OBL obligations defined in the MDR, the MHRA guidance, and the Commission’s recommendation, even if the OBL manufacturer chooses to comply with the MDD and likes to continue their business as usual.

Steps to take

As a result, the OBL manufacturer should be planning for additional regulatory work in the three years to come or even sooner. The regulatory effort should be spent to the following main topics:

  • the current abbreviated Technical File for the medical device product should undergo an overhaul, with more emphasis and details on amongst others risk management;
  • a detailed quality agreement with the OEM needs be made up (not only the general aspects regarding distribution and pricing need to be spelled out);
  • detailing the various roles and responsibilities of both the OBL and EOM;
  • the OBL should engage in performing activities for Post Market Surveillance (whereby not only a reactive approach is followed but also a pro-active).

Continuing business as usual will not seem to last much longer; CE Certificates for new products or renewals will most probably be taken care of by Notified Bodies in a way that differs substantially from the past.

Concluding, regulatory burden for medical devices put on the European market by an Own Brand Labeler will increase in the future and this future is near. The OBL could argue that this increased effort will not increase the safety of the products, but the Notified Bodies decide in the end, and their new direction has become clear recently. Because the activities involved will require a substantial lead time, it is time to act now in case of the medical device OBL manufacturer.

Blog by: Marc Klinkhamer - Principal consultant

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