STATEMENT OF AUTHORITY AND CONFIDENTIALITY COMMITMENT FROM FEDERAL AGENCY FOR MEDICINAL AND HEALTH PRODUCTS (FAMHP) NOT TO PUBLICLY DISCLOSE NON-PUBLIC INFORMATION SHARED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION
The United States Food and Drug Administration (FDA) is authorized under 21 C.F.R. § 20.891 to disclose non-public information to Federal Agency for Medicinal and Health Products (FAMHP) regarding FDA-regulated drugs, including pre- and post-market activities, as appropriate, as part of cooperative law enforcement or cooperative regulatory activities. FDA is further authorized under section 708(c) of the Federal Food, Drug, and Cosmetic Act2 to share with a foreign government, as it deems appropriate and under limited circumstances, certain types of trade secret information.
The Commissioner of Food and Drugs has certified FAMHP as having the authority and demonstrated ability to protect trade secret information from disclosure. FDA therefore may provide FAMHP with certain types of trade secret information at FDA’s discretion and upon request by FAMHP, based on the following certifications.
FAMHP understands that some of the information it receives from FDA may include non-public information exempt from public disclosure, such as commercially confidential information; trade secret information; personal privacy information; law enforcement information; designated national security information; or internal, pre-decisional information. FAMHP understands that this non-public information is shared in confidence and that it is critical that FAMHP maintains the confidentiality of exchanged non-public information. Public disclosure of exchanged non-public information by FAMHP could seriously jeopardize any further scientific and regulatory interactions between FAMHP and FDA. FDA will advise FAMHP of the non-public status of the information at the time that the information is shared.
Therefore, FAMHP certifies that it:
- has the authority to protect from public disclosure such non-public information provided to FAMHP in confidence by FDA;
- will not publicly disclose such FDA-provided non-public information without the written authorization of the owner of the information, the written authorization from the individual who is the subject of the personal privacy information, or a written statement from FDA providing that the information no longer has non-public status;
- will protect trade secret information that FDA may provide from disclosure unless and until FAMHP is in possession of a written permission for disclosure by the sponsor of the information provided by FDA, or alternatively of a declaration from the Commissioner of Food and Drugs of a public health emergency under section 319 of the Public Health Service Act that is relevant to the information;
- with respect to trade secret information concerning the inspection of a drug facility, has the authority to otherwise obtain such information and will use such FDA-provided information only for civil, administrative regulatory purposes in the context of its mission;
- will inform FDA promptly of any effort made by judicial or legislative mandate to obtain FDA-provided non-public information from FAMHP. If such judicial or legislative mandate requires disclosure of FDA-provided non-public information, FAMHP will take all appropriate legal measures in an effort to ensure that the information will be disclosed in a manner that protects the information from public disclosure; and
- will promptly inform FDA of any changes to the FAMHP’s laws, or to any relevant policies or procedures, that would affect FAMHP’s ability to honor the commitments in this document.
FAMHP understands that FDA-provided information may come to it from the European Medicines Agency (EMA) and/or the European Commission’s Directorate-General for Health and Food Safety (DG SANTE) as a result of the Cooperation Agreement between EMA and the EU Member States Regulatory Authorities. FAMHP will protect such FDA-provided non-public information from public disclosure to the same extent that it will protect non-public information provided to it directly by FDA.
This text is not intended to create rights and obligations under international or other law.
Signed on behalf of FAMHP
Xavier De Cuyper
Federal Agency for Medicinal and Health Products
1 - United States Code of Federal Regulations, Title 21, section 20.89.
2 - United States Code, Title 21, section 379(c).