- Delivery Method:
- VIA UPS
Recipient NameMr. Kwon Moon Oh
Recipient TitleSales Director
- DongBang Cosmetics Co., Ltd.
39 Gajaeul-Ro, 32 Beon-Gil
- Issuing Office:
- Center for Drug Evaluation and Research | CDER
Warning Letter 320-22-03
October 22, 2021
Dear Mr. Oh:
Your firm is registered as a human drug manufacturer. The United States Food and Drug Administration (FDA) conducted testing of a consumer antiseptic hand rub drug product (also referred to as a consumer hand sanitizer), labeled as MISSY KAY Premium Hand Sanitizer. This drug product was manufactured at your facility, DongBang Cosmetics Co., FEI 3013677509, at Ltd., 39 Gajaeullo-Ro, 32 Beon-Gil, Seo-Gu, Incheon. Following an attempt to import MISSY KAY Premium Hand Sanitizer into the United States (U.S.), it was detained and refused admission at the border.
The results of the FDA laboratory testing of a batch of this product detained at the border demonstrate that this drug product manufactured at your facility is adulterated within the meaning of section 501(c) of the Federal Food, Drug, and Cosmetic Act (FD&C Act or Act), 21 U.S.C. 351(c), in that its strength, purity, or quality falls below that which it purports or is represented to possess. In addition, this product is adulterated within the meaning of section 501(a)(2)(B) of the FD&C Act (21 U.S.C. 351(a)(2)(B)), in that the subpotency demonstrates that the quality assurance within your facility is not functioning in accordance with Current Good Manufacturing Practice (CGMP) requirements.
In addition, MISSY KAY Premium Hand Sanitizer is an unapproved new drug introduced or delivered for introduction into interstate commerce in violation of section 505(a) of the FD&C Act, 21 U.S.C. 355(a), and is misbranded under sections 502(a), (c), (x) and (ee) of the FD&C Act, 21 U.S.C. 352(a). Introduction or delivery for introduction of such a product into interstate commerce is prohibited under sections 301(d) and (a) of the FD&C Act, 21 U.S.C. 331(d) and (a). These violations are described in more detail below.
MISSY KAY Premium Hand Sanitizer, manufactured at your facility, is labeled to contain 62% weight/weight (w/w) of the active ingredient alcohol (ethanol). However, FDA laboratory testing of a batch of this product detained at the border found that the drug product contained an average of only 55% w/w ethanol. This hand sanitizer drug product is adulterated under section 501(c) of the FD&C Act in that the active ingredient of ethanol is present at levels in the product lower than that which is declared on its labeling.
CDC recommends1 that, if soap and water are not readily available, consumers use an alcohol-based hand sanitizer that contains not less than 60% alcohol (ethanol). This is the minimum active ingredient concentration of ethanol specified in the 1994 Tentative Final Monograph for Health-Care Antiseptic Drug Products (59 FR 31402), as further amended by “Safety and Effectiveness of Consumer Antiseptics; Topical Antimicrobial Drug Products for Over-the-Counter Human Use; Proposed Amendment of the Tentative Final Monograph; Reopening of Administrative Record,” Proposed Rule, 81 FR 42912 (June 30, 2016).
On October 14, 2020, FDA held a teleconference with you. During that call, we requested additional information concerning your CGMP operations, including testing methods for finished product, active pharmaceutical ingredient supplier information, confirmation that you follow drug CGMP per 21 CFR Parts 210 and 211, and your investigation into the subpotent batch test by FDA. Following that teleconference, FDA sent multiple requests to your firm to provide additional information. Your firm has exhibited a pattern of not providing adequate or complete responses to FDA’s requests for information regarding drug quality. In your responses, you provided documentation referencing cosmetic CGMPs, which are not equivalent to drug CGMPs. Furthermore, you did not provide any documentation of your finished product test methods, analytical procedures, impurity testing or stability reports. Without adequate testing of incoming raw materials and finished product, as required under 21 CFR 211.84 and 21 CFR 211.165 respectively, you cannot assure that your drug products conform to appropriate specifications for identity, strength, quality and purity.
In response to this letter, provide complete responses to all the questions sent to your firm on January 19, 2021 including but not limited to the following:
• A detailed investigation into how the hand sanitizer drug product described above, which was labeled as containing 62% ethanol, in fact contained an average of 55% ethanol.
• A list of all raw materials used to manufacture your hand sanitizer drug products, including the suppliers’ names, addresses, and contact information.
• A list of all batches of any hand sanitizer drug products shipped to the United States by your firm, and a full reconciliation of all material you distributed.
• Copies of the complete batch records for all batches distributed to the U.S.
The subpotency of hand sanitizer drug products declared or labeled as manufactured in your facility, in addition to the deficiencies in your response to the information we requested during the October 14, 2020 teleconference, demonstrate that the quality assurance within your facility is not functioning in accordance with CGMP requirements under section 501(a)(2)(B) of the FD&C Act.2
Unapproved New Drug and Misbranding Violations
MISSY KAY Premium Hand Sanitizer is a “drug” as defined by section 201(g)(1)(B) of the FD&C Act, 21 U.S.C. 321(g)(1)(B), because it is intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease, and/or under section 201(g)(1)(C) of the FD&C Act, 21 U.S.C. 321(g)(1)(C), because it is intended to affect the structure or any function of the body. Specifically, this product is intended as a consumer topical antiseptic.
Examples of claims observed on the MISSY KAY Premium Hand Sanitizer product label and labeling that provide evidence of the intended uses (as defined in 21 CFR 201.128) of the product include, but may not be limited to, the following:
“Missy Kay Premium Hand Sanitizer that easily sterilizes and disinfects hands and skin without water . . .”
“Drug Facts…PURPOSE…Antiseptic…USE… Hand Sanitizer to help reduce bacteria on the skin that can cause disease……. DIRECTIONS…Place enough product in your palm to thoroughly cover your…Rubs hands together briskly until dry”
This topical antiseptic product is a “new drug” within the meaning of section 201(p) of the FD&C Act, 21 U.S.C. 321(p), because it is not generally recognized as safe and effective (GRASE) for use under the conditions prescribed, recommended, or suggested in its labeling. New drugs may not be introduced or delivered for introduction into interstate commerce without prior approval from FDA, as described in section 505(a) of the FD&C Act, 21 U.S.C. 355(a), unless they are lawfully marketed under section 505G of the FD&C Act (which is not the case for this product, as further described below) or other exceptions not applicable. No FDA-approved application pursuant to section 505 of the FD&C Act, 21 U.S.C. 355, is in effect for this drug product, nor are we aware of any adequate and well-controlled clinical studies in the published literature that support a determination that your MISSY KAY Premium Hand Sanitizer drug product is GRASE for use under the conditions suggested, recommended, or prescribed in its labeling. Accordingly, this product is an unapproved new drug marketed in violation of sections 505(a) and 301(d) of the FD&C Act, 21 U.S.C 355(a) and 331(d).
We note that over-the-counter (OTC) topical antiseptic products had been the subject of rulemaking under the Agency’s OTC Drug Review. In particular, such products were addressed in a tentative final monograph (TFM) entitled “Topical Antimicrobial Drug Products for Over-the-Counter Human Use; Tentative Final Monograph for Health-Care Antiseptic Drug Products,” Proposed Rule, 59 FR 31402 (June 17, 1994) (1994 TFM), as further amended by “Safety and Effectiveness of Consumer Antiseptics; Topical Antimicrobial Drug Products for Over-the-Counter Human Use; Proposed Amendment of the Tentative Final Monograph; Reopening of Administrative Record,” Proposed Rule, 81 FR 42912 (June 30, 2016)(Consumer Antiseptic Rubs Proposed Rule). Over the course of these rulemakings, three active ingredients (benzalkonium chloride, ethyl alcohol (ethanol), and isopropyl alcohol) were classified as Category III for use in consumer antiseptic rub products, meaning that additional safety and effectiveness data are needed to support a determination that a drug product containing one of these active ingredients would be GRASE for use as a consumer antiseptic rub.
Section 505G of the FD&C Act addresses nonprescription drugs marketed without an approved application. Under 505G(a)(3) of the FD&C Act, drugs that were classified as Category III for safety or effectiveness in a TFM that is the most recently applicable proposal or determination for such drug issued under 21 CFR Part 330 - and that were not classified as Category II for safety or effectiveness – are not required to have an approved application under section 505 in order to be marketed, as long as they are in conformity with the relevant conditions of use outlined in the applicable TFM, including the active ingredient, and comply with all other applicable requirements.
However, MISSY KAY Premium Hand Sanitizer does not conform to the 1994 TFM, as further amended by the 2016 Consumer Antiseptic Rubs Proposed Rule, nor any other TFM, proposed rule, or final rule, and does not meet the conditions under section 505G(a)(3) of the FD&C Act for marketing without an approved application under section 505.
According to the product label, MISSY KAY Premium Hand Sanitizer purportedly contains the active ingredient ethyl alcohol 62% v/v. However, as previously discussed, FDA laboratory analyses of batches of this product detained at the border demonstrated that MISSY KAY Premium Hand Sanitizer contains ethanol in a concentration that is less than the 62% v/v stated on its product label and less than the amount of ethanol described in the 1994 TFM.3 Such a product does not conform with the TFM or applicable requirements, nor is it consistent with the formulations described in the guidances setting forth FDA’s temporary policies for hand sanitizers during the COVID-19 public health emergency.4
Additionally, MISSY KAY Premium Hand Sanitizer is misbranded under section 502(a) of the FD&C Act, 21 U.S.C 352(a), because its labeling is false or misleading. As noted above, MISSY KAY Premium Hand Sanitizer is labeled to contain ethanol 62% v/v. However, FDA laboratory analysis of batches of this product demonstrated that the product contains concentrations of ethanol that are less than that stated on its product labels. Thus, the misleading representations of the concentration of the active ingredient ethanol cause MISSY KAY Premium Hand Sanitizer to be misbranded under section 502(a) of the FD&C Act, 21 U.S.C. 352(a).
We also note that the label of MISSY KAY Premium Hand Sanitizer states that it “sterilizes and disinfects hands and skin,” which suggests it is a disinfectant. However, disinfectants are recognized as cleaning agents and substances intended for use on inanimate objects, such as equipment, as a part of a highly controlled process to either eliminate or reduce the number of microorganisms to a safe level.5 In contrast, topical antiseptics are intended for use on the skin. While the directions for use and other components of your product label for the MISSY KAY Premium Hand Sanitizer demonstrate that this product is intended for use on the skin as an antiseptic, the use of “disinfects” in your labeling may be confusing for consumers.
MISSY KAY Premium Hand Sanitizer is misbranded under section 502(c) of the FD&C Act, 21 U.S.C. 352(c), because it fails to comply with 21 CFR 201.15(c)(2), which states “if the label contains any representation in a foreign language, all words, statements, and other information required by or under authority of the act to appear on the label shall appear thereon in the foreign language.” Specifically, the product name is in Korean (as well as English), but all of the other information required to be on the label is not in Korean (it is only in English).
Also, MISSY KAY Premium Hand Sanitizer is misbranded under section 502(x) of the FD&C Act, 21 U.S.C. 352(x), because the product label fails to disclose a complete domestic address or domestic telephone number through which the responsible person may receive a report of a serious adverse event with such drug.
Lastly, this product is misbranded under section 502(ee) of the FD&C Act, 21 U.S.C. 352(ee), because MISSY KAY Premium Hand Sanitizer is a nonprescription drug subject to section 505G of the FD&C Act, 21 U.S.C. 355G, but does not comply with the requirements for marketing under that section and is not the subject of an application approved under section 505 of the FD&C Act, 21 U.S.C. 355.
The introduction or delivery for introduction of a misbranded drug into interstate commerce is prohibited under section 301(a) of the FD&C Act, 21 U.S.C. 331(a).
CGMP Consultant Recommended
Based upon the nature of the violations we identified at your firm, we strongly recommend engaging a consultant qualified as set forth in 21 CFR 211.34 to evaluate your operations and to assist your firm in meeting CGMP requirements if your firm intends to resume manufacturing drugs for the U.S. market. We also recommend that the qualified consultant perform a comprehensive audit of your entire operation for CGMP compliance and that the consultant evaluates the completion and efficacy of your corrective actions and preventive actions before you pursue resolution of your firm’s compliance status with FDA. Your use of a consultant does not relieve your firm’s obligation to comply with CGMP. Your firm’s executive management remains responsible for resolving all deficiencies and systemic flaws to ensure ongoing CGMP compliance.
The violations cited in this letter are not intended to be an all-inclusive list of violations associated with your drug products. You are responsible for investigating and determining the causes of any violations and for preventing their recurrence or the occurrence of other violations.
Note that FDA placed all drugs and drug products manufactured by your firm on Import Alert 66-78 on January 11, 2021, as the methods used in and controls used for the manufacture, processing, packing, or holding of these products do not appear to conform to current good manufacturing practices within the meaning of section 501(a)(2)(B) of the FD&C Act. Drugs and drug products that appear to be adulterated or misbranded may be detained or refused admission without physical examination.
All drugs and drug products manufactured by your firm may remain listed on this import alert until there is evidence establishing that the conditions that gave rise to the appearance of a violation have been resolved, and the Agency has confidence that future entries will be in compliance with the FD&C Act. This may include an inspection prior to the Agency considering the appearance of adulteration to be addressed.
This letter notifies you of our findings and provides you an opportunity to address the above deficiencies. After you receive this letter, respond to this office in writing within 15 working days. Specify what you have done to address any violations and to prevent their recurrence. In response to this letter, you may provide additional information for our consideration as we continue to assess your activities and practices. If you cannot do so within 15 working days, state your reasons for delay and your schedule for completion.
Send your electronic reply to CDER-OC-OMQ-Communications@fda.hhs.gov.
Please identify your response with FEI 3013677509 and ATTN: Rory Geyer.
Office of Manufacturing Quality
Office of Compliance
Center for Drug Evaluation and Research
Registered U.S. Agent
J.S. Chem International Co.
2361 Campus Drive, Suite 260
Irvine, CA 92612
2 Due to an increased demand for alcohol-based hand sanitizers during the COVID-19 pandemic, FDA published the Guidance for Industry: Temporary Policy for Preparation of Certain Alcohol-Based Hand Sanitizer Products During the Public Health Emergency (COVID-19) on March 19, 2020, and subsequently updated the guidance several times, most recently on February 10, 2021. This guidance communicates the Agency’s temporary policy that we do not intend to take action against firms for CGMP violations under section 501(a)(2)(B) of the FD&C Act if such firms prepare alcohol-based hand sanitizers for consumer use (or for use as a health care personnel hand rub) during the public health emergency, provided certain circumstances described in the guidance are present. These circumstances include preparation of hand sanitizer products using only the ingredients and formulas set forth in the guidance. In addition to the violative testing results detailed above that demonstrate the subpotency of the hand sanitizer product manufactured at your facility, a review of the drug product’s labeling further indicates that this product is not prepared consistent with FDA’s temporary policy set forth in the guidance. Therefore, this product does not fall within the Agency’s temporary policy not to take action against firms manufacturing hand sanitizer products for violations of section 501(a)(2)(B) of the FD&C Act.
3 The 1994 TFM, which does not distinguish between antiseptic hand washes and rubs, proposed for antiseptic hand washes and healthcare personnel hand washes an alcohol concentration of “60 to 95 percent by volume in an aqueous solution denatured according to Bureau of Alcohol, Tobacco and Firearms regulations in 27 CFR part 20.” 59 FR at 31442. Later amendments to the 1994 TFM distinguished between antiseptic hand washes and rubs, and between consumer and healthcare personnel antiseptics, but did not change the alcohol concentration originally proposed in 1994.
4 See, e.g., Temporary Policy for Preparation of Certain Alcohol-Based Hand Sanitizer Products During the Public Health Emergency (COVID-19). Because MISSY KAY Premium Hand Sanitizer is not consistent with the formulations described in these guidances, it does not fall within any temporary Agency policy not to take action against firms manufacturing hand sanitizer products for violations of section 505 of the FD&C Act.
5 See FDA’s guidance document, Sterile Drug Products Produced by Aseptic Processing—Current Good Manufacturing Practice, which defines disinfection as the “[p]rocess by which surface bioburden is reduced to a safe level or eliminated.” Because MISSY KAY Premium Hand Sanitizer is not a sterile drug product manufactured under aseptic conditions, the labeling inappropriately includes claims described in manufacturing operations, procedures, processes, and systems that help enable sterile drug manufactures conform to FDA requirements.