---
kind: "section"
citation: "21 U.S.C. § 360j"
title: "21"
title_heading: "Food and Drugs"
number: "360j"
heading: "General provisions respecting control of devices intended for human use"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/21/360j"
units:
  - "Chapter 9 — Federal Food, Drug, and Cosmetic Act"
  - "Subchapter V — Drugs and Devices"
  - "Part A — Drugs and Devices"
---

# §360j. General provisions respecting control of devices intended for human use

- (a) **General rule—** Any requirement [authorized](/usc/21/360eee.md?p=2) by or under section [351](/usc/21/351.md), [352](/usc/21/352.md), [360](/usc/21/360.md), or [360i](/usc/21/360i.md) of this title applicable to a [device](/usc/21/321.md?p=h-1) intended for human use shall apply to such [device](/usc/21/321.md?p=h-1) until the applicability of the requirement to the [device](/usc/21/321.md?p=h-1) has been changed by action taken under section [360c](/usc/21/360c.md), [360d](/usc/21/360d.md), or [360e](/usc/21/360e.md) of this title or under [subsection (g)](#g) of this section, and any requirement established by or under section [351](/usc/21/351.md), [352](/usc/21/352.md), [360](/usc/21/360.md), or [360i](/usc/21/360i.md) of this title which is inconsistent with a requirement imposed on such [device](/usc/21/321.md?p=h-1) under section [360d](/usc/21/360d.md) or [360e](/usc/21/360e.md) of this title or under [subsection (g)](#g) of this section shall not apply to such [device](/usc/21/321.md?p=h-1).
- (b) **Custom devices—**
  - (1) **In general—** The requirements of sections [360d](/usc/21/360d.md) and [360e](/usc/21/360e.md) of this title shall not apply to a [device](/usc/21/321.md?p=h-1) that—
    - (A) is created or modified in order to comply with the order of an individual physician or dentist (or any other specially qualified [person](/usc/21/321.md?p=e) designated under regulations promulgated by the [Secretary](/usc/21/321.md?p=d) after an opportunity for an oral hearing);
    - (B) in order to comply with an order described in [subparagraph (A)](#b-1-A), necessarily deviates from an otherwise applicable performance standard under [section 360d of this title](/usc/21/360d.md) or requirement under [section 360e of this title](/usc/21/360e.md);
    - (C) is not generally available in the United States in finished form through [labeling](/usc/21/321.md?p=m) or advertising by the [manufacturer](/usc/21/360hh.md?p=3), importer, or distributor for commercial [distribution](/usc/21/360eee.md?p=5);
    - (D) is designed to treat a unique pathology or physiological condition that no other [device](/usc/21/321.md?p=h-1) is domestically available to treat;
    - (E)
      - (i) is intended to meet the special needs of such physician or dentist (or other specially qualified [person](/usc/21/321.md?p=e) so designated) in the course of the professional practice of such physician or dentist (or other specially qualified [person](/usc/21/321.md?p=e) so designated); or
      - (ii) is intended for use by an individual patient named in such order of such physician or dentist (or other specially qualified [person](/usc/21/321.md?p=e) so designated);
    - (F) is assembled from components or manufactured and finished on a case-by-case basis to accommodate the unique needs of individuals described in clause [(i)](#b-1-E-i) or [(ii)](#b-1-E-ii) of subparagraph (E); and
    - (G) may have common, standardized design characteristics, chemical and material compositions, and manufacturing processes as commercially distributed [devices](/usc/21/321.md?p=h-1).
  - (2) **Limitations—** [Paragraph (1)](#b-1) shall apply to a [device](/usc/21/321.md?p=h-1) only if—
    - (A) such [device](/usc/21/321.md?p=h-1) is for the purpose of treating a sufficiently rare condition, such that conducting clinical investigations on such [device](/usc/21/321.md?p=h-1) would be impractical;
    - (B) production of such [device](/usc/21/321.md?p=h-1) under [paragraph (1)](#b-1) is limited to no more than 5 units per year of a particular [device](/usc/21/321.md?p=h-1) type, provided that such replication otherwise complies with this section; and
    - (C) the [manufacturer](/usc/21/360hh.md?p=3) of such [device](/usc/21/321.md?p=h-1) notifies the [Secretary](/usc/21/321.md?p=d) on an annual basis, in a manner prescribed by the [Secretary](/usc/21/321.md?p=d), of the manufacture of such [device](/usc/21/321.md?p=h-1).
  - (3) **Guidance—** Not later than 2 years after July 9, 2012, the [Secretary](/usc/21/321.md?p=d) shall issue final guidance on replication of multiple [devices](/usc/21/321.md?p=h-1) described in [paragraph (2)(B)](#b-2-B).
- (c) **Trade secrets—** Any information reported to or otherwise obtained by the [Secretary](/usc/21/321.md?p=d) or his representative under section [360c](/usc/21/360c.md), [360d](/usc/21/360d.md), [360e](/usc/21/360e.md), [360f](/usc/21/360f.md), [360h](/usc/21/360h.md), [360i](/usc/21/360i.md), or [374](/usc/21/374.md) of this title or under subsection [(f)](#f) or [(g)](#g) of this section which is exempt from disclosure pursuant to subsection (a) of [section 552 of title 5](/usc/5/552.md) by reason of [subsection (b)(4)](/usc/5/552.md?p=b-4) of such section shall be considered confidential and shall not be disclosed and may not be used by the [Secretary](/usc/21/321.md?p=d) as the basis for the reclassification of a [device](/usc/21/321.md?p=h-1) from class III to class II or class I or as the basis for the establishment or amendment of a performance standard under [section 360d of this title](/usc/21/360d.md) for a [device](/usc/21/321.md?p=h-1) reclassified from class III to class II, except (1) in accordance with subsection [(h)](#h), and (2) that such information may be disclosed to other officers or employees concerned with carrying out this chapter or when relevant in any proceeding under this chapter (other than section [360c](/usc/21/360c.md) or [360d](/usc/21/360d.md) of this title).
- (d) **Notices and findings—** Each notice of proposed rulemaking under section [360c](/usc/21/360c.md), [360d](/usc/21/360d.md), [360e](/usc/21/360e.md), [360f](/usc/21/360f.md), [360h](/usc/21/360h.md), or [360i](/usc/21/360i.md) of this title, or under this section, any other notice which is published in the Federal Register with respect to any other action taken under any such section and which [states](/usc/21/321.md?p=a-1) the reasons for such action, and each publication of findings required to be made in connection with rulemaking under any such section shall set forth—
  - (1) the manner in which interested [persons](/usc/21/321.md?p=e) may examine data and other information on which the notice or findings is based, and
  - (2) the period within which interested [persons](/usc/21/321.md?p=e) may present their comments on the notice or findings (including the need therefor) orally or in writing, which period shall be at least sixty days but may not exceed ninety days unless the time is extended by the [Secretary](/usc/21/321.md?p=d) by a notice published in the Federal Register stating good cause therefor.
- (e) **Restricted devices—**
  - (1) The [Secretary](/usc/21/321.md?p=d) may by regulation require that a [device](/usc/21/321.md?p=h-1) be restricted to sale, [distribution](/usc/21/360eee.md?p=5), or use—
    - (A) only upon the written or oral authorization of a practitioner [licensed](/usc/21/360eee.md?p=9) by law to administer or use such [device](/usc/21/321.md?p=h-1), or
    - (B) upon such other conditions as the [Secretary](/usc/21/321.md?p=d) may prescribe in such regulation,

    if, because of its potentiality for harmful effect or the collateral measures necessary to its use, the [Secretary](/usc/21/321.md?p=d) determines that there cannot otherwise be reasonable assurance of its safety and effectiveness. No condition prescribed under [subparagraph (B)](#e-1-B) may restrict the use of a [device](/usc/21/321.md?p=h-1) to [persons](/usc/21/321.md?p=e) with specific training or experience in its use or to [persons](/usc/21/321.md?p=e) for use in certain facilities unless the [Secretary](/usc/21/321.md?p=d) determines that such a restriction is required for the [safe](/usc/21/321.md?p=u) and effective use of the [device](/usc/21/321.md?p=h-1). No such condition may exclude a [person](/usc/21/321.md?p=e) from using a [device](/usc/21/321.md?p=h-1) solely because the [person](/usc/21/321.md?p=e) does not have the training or experience to make him eligible for certification by a certifying board recognized by the American Board of Medical Specialties or has not been certified by such a Board. A [device](/usc/21/321.md?p=h-1) subject to a regulation under this subsection is a restricted [device](/usc/21/321.md?p=h-1).

  - (2) The [label](/usc/21/321.md?p=k) of a restricted [device](/usc/21/321.md?p=h-1) shall bear such appropriate statements of the restrictions required by a regulation under [paragraph (1)](#e-1) as the [Secretary](/usc/21/321.md?p=d) may in such regulation prescribe.
- (f) **Good manufacturing practice requirements—**
  - (1)
    - (A) The [Secretary](/usc/21/321.md?p=d) may, in accordance with [subparagraph (B)](#f-1-B), prescribe regulations requiring that the methods used in, and the facilities and controls used for, the manufacture, pre-production design validation (including a process to assess the performance of a [device](/usc/21/321.md?p=h-1) but not including an evaluation of the safety or effectiveness of a [device](/usc/21/321.md?p=h-1)), packing, storage, and installation of a [device](/usc/21/321.md?p=h-1) conform to current good manufacturing practice, as prescribed in such regulations, to assure that the [device](/usc/21/321.md?p=h-1) will be [safe](/usc/21/321.md?p=u) and effective and otherwise in compliance with this chapter.
    - (B) Before the [Secretary](/usc/21/321.md?p=d) may promulgate any regulation under [subparagraph (A)](#f-1-A) he shall—
      - (i) afford the [advisory committee](/usc/21/360fff.md?p=1) established under [paragraph (3)](#f-3) an opportunity to submit recommendations to him with respect to the regulation proposed to be promulgated;
      - (ii) afford opportunity for an oral hearing; and
      - (iii) ensure that such regulation conforms, to the extent practicable, with internationally recognized standards defining quality systems, or parts of the standards, for medical [devices](/usc/21/321.md?p=h-1).

      The [Secretary](/usc/21/321.md?p=d) shall provide the [advisory committee](/usc/21/360fff.md?p=1) a reasonable time to make its recommendation with respect to proposed regulations under [subparagraph (A)](#f-1-A).

  - (2)
    - (A) Any [person](/usc/21/321.md?p=e) subject to any requirement prescribed by regulations under [paragraph (1)](#f-1) may petition the [Secretary](/usc/21/321.md?p=d) for an exemption or variance from such requirement. Such a petition shall be submitted to the [Secretary](/usc/21/321.md?p=d) in such form and manner as he shall prescribe and shall—
      - (i) in the case of a petition for an exemption from a requirement, set forth the basis for the petitioner’s determination that compliance with the requirement is not required to assure that the [device](/usc/21/321.md?p=h-1) will be [safe](/usc/21/321.md?p=u) and effective and otherwise in compliance with this chapter,
      - (ii) in the case of a petition for a variance from a requirement, set forth the methods proposed to be used in, and the facilities and controls proposed to be used for, the manufacture, packing, storage, and installation of the [device](/usc/21/321.md?p=h-1) in lieu of the methods, facilities, and controls prescribed by the requirement, and
      - (iii) contain such other information as the [Secretary](/usc/21/321.md?p=d) shall prescribe.
    - (B) The [Secretary](/usc/21/321.md?p=d) may refer to the [advisory committee](/usc/21/360fff.md?p=1) established under [paragraph (3)](#f-3) any petition submitted under [subparagraph (A)](#f-2-A). The [advisory committee](/usc/21/360fff.md?p=1) shall report its recommendations to the [Secretary](/usc/21/321.md?p=d) with respect to a petition referred to it within sixty days of the date of the petition’s referral. Within sixty days after—
      - (i) the date the petition was submitted to the [Secretary](/usc/21/321.md?p=d) under [subparagraph (A)](#f-2-A), or
      - (ii) if the petition was referred to an [advisory committee](/usc/21/360fff.md?p=1), the expiration of the sixty-day period beginning on the date the petition was referred to the [advisory committee](/usc/21/360fff.md?p=1),

      whichever occurs later, the [Secretary](/usc/21/321.md?p=d) shall by order either deny the petition or approve it.

    - (C) The [Secretary](/usc/21/321.md?p=d) may approve—
      - (i) a petition for an exemption for a [device](/usc/21/321.md?p=h-1) from a requirement if he determines that compliance with such requirement is not required to assure that the [device](/usc/21/321.md?p=h-1) will be [safe](/usc/21/321.md?p=u) and effective and otherwise in compliance with this chapter, and
      - (ii) a petition for a variance for a [device](/usc/21/321.md?p=h-1) from a requirement if he determines that the methods to be used in, and the facilities and controls to be used for, the manufacture, packing, storage, and installation of the [device](/usc/21/321.md?p=h-1) in lieu of the methods, controls, and facilities prescribed by the requirement are sufficient to assure that the [device](/usc/21/321.md?p=h-1) will be [safe](/usc/21/321.md?p=u) and effective and otherwise in compliance with this chapter.

      An order of the [Secretary](/usc/21/321.md?p=d) approving a petition for a variance shall prescribe such conditions respecting the methods used in, and the facilities and controls used for, the manufacture, packing, storage, and installation of the [device](/usc/21/321.md?p=h-1) to be granted the variance under the petition as may be necessary to assure that the [device](/usc/21/321.md?p=h-1) will be [safe](/usc/21/321.md?p=u) and effective and otherwise in compliance with this chapter.

    - (D) After the issuance of an order under [subparagraph (B)](#f-2-B) respecting a petition, the petitioner shall have an opportunity for an [informal hearing](/usc/21/321.md?p=x) on such order.
  - (3) The [Secretary](/usc/21/321.md?p=d) shall establish an [advisory committee](/usc/21/360fff.md?p=1) for the purpose of advising and making recommendations to him with respect to regulations proposed to be promulgated under [paragraph (1)(A)](#f-1-A) and the approval or disapproval of petitions submitted under [paragraph (2)](#f-2). The [advisory committee](/usc/21/360fff.md?p=1) shall be composed of nine members as follows:
    - (A) Three of the members shall be appointed from [persons](/usc/21/321.md?p=e) who are officers or employees of any [State](/usc/21/321.md?p=a-1) or local government or of the Federal Government.
    - (B) Two of the members shall be appointed from [persons](/usc/21/321.md?p=e) who are representative of interests of the [device](/usc/21/321.md?p=h-1) manufacturing industry; two of the members shall be appointed from [persons](/usc/21/321.md?p=e) who are representative of the interests of physicians and other health professionals; and two of the members shall be representative of the interests of the general public.

    Members of the [advisory committee](/usc/21/360fff.md?p=1) who are not officers or employees of the United States, while attending conferences or meetings of the committee or otherwise engaged in its business, shall be entitled to receive compensation at rates to be fixed by the [Secretary](/usc/21/321.md?p=d), which rates may not exceed the daily equivalent of the rate in effect for grade GS–18 of the General Schedule, for each day (including traveltime) they are so engaged; and while so serving away from their homes or regular places of business each member may be allowed travel expenses, including per diem in lieu of subsistence, as [authorized](/usc/21/360eee.md?p=2) by [section 5703 of title 5](/usc/5/5703.md) for [persons](/usc/21/321.md?p=e) in the Government service employed intermittently. The [Secretary](/usc/21/321.md?p=d) shall designate one of the members of the [advisory committee](/usc/21/360fff.md?p=1) to serve as its chairman. The [Secretary](/usc/21/321.md?p=d) shall furnish the [advisory committee](/usc/21/360fff.md?p=1) with clerical and other assistance. [Section 1013 of title 5](/usc/5/1013.md) shall not apply with respect to the duration of the [advisory committee](/usc/21/360fff.md?p=1) established under this paragraph.

- (g) **Exemption for devices for investigational use—**
  - (1) It is the purpose of this subsection to encourage, to the extent consistent with the protection of the public health and safety and with ethical standards, the discovery and development of useful [devices](/usc/21/321.md?p=h-1) intended for human use and to that end to maintain optimum freedom for scientific investigators in their pursuit of that purpose.
  - (2)
    - (A) The [Secretary](/usc/21/321.md?p=d) shall, within the one hundred and twenty-day period beginning on May 28, 1976, by regulation prescribe procedures and conditions under which [devices](/usc/21/321.md?p=h-1) intended for human use may upon application be granted an exemption from the requirements of section [352](/usc/21/352.md), [360](/usc/21/360.md), [360d](/usc/21/360d.md), [360e](/usc/21/360e.md), [360f](/usc/21/360f.md), [360i](/usc/21/360i.md), or [379e](/usc/21/379e.md) of this title or subsection [(e)](#e) or [(f)](#f) of this section or from any combination of such requirements to permit the investigational use of such [devices](/usc/21/321.md?p=h-1) by experts qualified by scientific training and experience to investigate the safety and effectiveness of such [devices](/usc/21/321.md?p=h-1).
    - (B) The conditions prescribed pursuant to [subparagraph (A)](#g-2-A) shall include the following:
      - (i) A requirement that an application be submitted to the [Secretary](/usc/21/321.md?p=d) before an exemption may be granted and that the application be submitted in such form and manner as the [Secretary](/usc/21/321.md?p=d) shall specify.
      - (ii) A requirement that the [person](/usc/21/321.md?p=e) applying for an exemption for a [device](/usc/21/321.md?p=h-1) assure the establishment and maintenance of such records, and the making of such reports to the [Secretary](/usc/21/321.md?p=d) of safety or effectiveness data obtained as a result of the investigational use of the [device](/usc/21/321.md?p=h-1) during the exemption, as the [Secretary](/usc/21/321.md?p=d) determines will enable him to assure compliance with such conditions, review the progress of the investigation, and evaluate the safety and effectiveness of the [device](/usc/21/321.md?p=h-1).
      - (iii) Such other requirements as the [Secretary](/usc/21/321.md?p=d) may determine to be necessary for the protection of the public health and safety.
    - (C) Procedures and conditions prescribed pursuant to [subparagraph (A)](#g-2-A) for an exemption may appropriately vary depending on (i) the scope and duration of clinical testing to be conducted under such exemption, (ii) the number of human subjects that are to be involved in such testing, (iii) the need to permit changes to be made in the [device](/usc/21/321.md?p=h-1) subject to the exemption during testing conducted in accordance with a clinical testing plan required under paragraph [(3)(A)](#g-3-A), and (iv) whether the clinical testing of such [device](/usc/21/321.md?p=h-1) is for the purpose of developing data to obtain approval for the commercial [distribution](/usc/21/360eee.md?p=5) of such [device](/usc/21/321.md?p=h-1).
  - (3) Procedures and conditions prescribed pursuant to [paragraph (2)(A)](#g-2-A) shall require, as a condition to the exemption of any [device](/usc/21/321.md?p=h-1) to be the subject of testing involving human subjects, that the [person](/usc/21/321.md?p=e) applying for the exemption—
    - (A) submit a plan for any proposed clinical testing of the [device](/usc/21/321.md?p=h-1) and a report of prior investigations of the [device](/usc/21/321.md?p=h-1) (including, where appropriate, tests on animals) adequate to justify the proposed clinical testing—
      - (i) to the institutional review committee established in accordance with regulations of the [Secretary](/usc/21/321.md?p=d) to supervise clinical testing of [devices](/usc/21/321.md?p=h-1) in the facilities where the proposed clinical testing is to be conducted, or
      - (ii) to the [Secretary](/usc/21/321.md?p=d), if—
        - (I) no such committee exists, or
        - (II) the [Secretary](/usc/21/321.md?p=d) finds that the process of review by such committee is inadequate (whether or not the plan for such testing has been approved by such committee),

        for review for adequacy to justify the commencement of such testing; and, unless the plan and report are submitted to the [Secretary](/usc/21/321.md?p=d), submit to the [Secretary](/usc/21/321.md?p=d) a summary of the plan and a report of prior investigations of the [device](/usc/21/321.md?p=h-1) (including, where appropriate, tests on animals);

    - (B) promptly notify the [Secretary](/usc/21/321.md?p=d) (under such circumstances and in such manner as the [Secretary](/usc/21/321.md?p=d) prescribes) of approval by an institutional review committee of any clinical testing plan submitted to it in accordance with [subparagraph (A)](#g-3-A);
    - (C) in the case of a [device](/usc/21/321.md?p=h-1) to be distributed to investigators for testing, obtain signed agreements from each of such investigators that any testing of the [device](/usc/21/321.md?p=h-1) involving human subjects will be under such investigator’s supervision and in accordance with [subparagraph (D)](#g-3-D) and submit such agreements to the [Secretary](/usc/21/321.md?p=d); and
    - (D) assure that informed consent will be obtained from each human subject (or his representative) of proposed clinical testing involving such [device](/usc/21/321.md?p=h-1), except where, subject to such conditions as the [Secretary](/usc/21/321.md?p=d) may prescribe—
      - (i) the proposed clinical testing poses no more than minimal risk to the human subject and includes appropriate safeguards to protect the rights, safety, and welfare of the human subject; or
      - (ii) the investigator conducting or supervising the proposed clinical testing of the [device](/usc/21/321.md?p=h-1) determines in writing that there exists a life threatening situation involving the human subject of such testing which necessitates the use of such [device](/usc/21/321.md?p=h-1) and it is not feasible to obtain informed consent from the subject and there is not sufficient time to obtain such consent from his representative.

    The determination required by [subparagraph (D)(ii)](#g-3-D-ii) shall be concurred in by a [licensed](/usc/21/360eee.md?p=9) physician who is not involved in the testing of the human subject with respect to which such determination is made unless immediate use of the [device](/usc/21/321.md?p=h-1) is required to save the life of the human subject of such testing and there is not sufficient time to obtain such concurrence.

  - (4)
    - (A) An application, submitted in accordance with the procedures prescribed by regulations under [paragraph (2)](#g-2), for an exemption for a [device](/usc/21/321.md?p=h-1) (other than an exemption from [section 360f of this title](/usc/21/360f.md)) shall be deemed approved on the thirtieth day after the submission of the application to the [Secretary](/usc/21/321.md?p=d) unless on or before such day the [Secretary](/usc/21/321.md?p=d) by order disapproves the application and notifies the applicant of the disapproval of the application.
    - (B) The [Secretary](/usc/21/321.md?p=d) may disapprove an application only if he finds that the investigation with respect to which the application is submitted does not conform to procedures and conditions prescribed under regulations under [paragraph (2)](#g-2). Such a notification shall contain the order of disapproval and a complete statement of the reasons for the [Secretary](/usc/21/321.md?p=d)’s disapproval of the application and afford the applicant opportunity for an [informal hearing](/usc/21/321.md?p=x) on the disapproval order.
    - (C) Consistent with [paragraph (1)](#g-1), the [Secretary](/usc/21/321.md?p=d) shall not disapprove an application under this subsection because the [Secretary](/usc/21/321.md?p=d) determines that—
      - (i) the investigation may not support a substantial equivalence or de novo classification determination or approval of the [device](/usc/21/321.md?p=h-1);
      - (ii) the investigation may not meet a requirement, including a data requirement, relating to the approval or clearance of a [device](/usc/21/321.md?p=h-1); or
      - (iii) an additional or different investigation may be necessary to support clearance or approval of the [device](/usc/21/321.md?p=h-1).
  - (5) The [Secretary](/usc/21/321.md?p=d) may by order withdraw an exemption granted under this subsection for a [device](/usc/21/321.md?p=h-1) if the [Secretary](/usc/21/321.md?p=d) determines that the conditions applicable to the [device](/usc/21/321.md?p=h-1) under this subsection for such exemption are not met. Such an order may be issued only after opportunity for an [informal hearing](/usc/21/321.md?p=x), except that such an order may be issued before the provision of an opportunity for an [informal hearing](/usc/21/321.md?p=x) if the [Secretary](/usc/21/321.md?p=d) determines that the continuation of testing under the exemption with respect to which the order is to be issued will result in an unreasonable risk to the public health.
  - (6)
    - (A) Not later than 1 year after November 21, 1997, the [Secretary](/usc/21/321.md?p=d) shall by regulation establish, with respect to a [device](/usc/21/321.md?p=h-1) for which an exemption under this subsection is in effect, procedures and conditions that, without requiring an additional approval of an application for an exemption or the approval of a supplement to such an application, permit—
      - (i) developmental changes in the [device](/usc/21/321.md?p=h-1) (including manufacturing changes) that do not constitute a significant change in design or in basic principles of operation and that are made in response to information gathered during the course of an investigation; and
      - (ii) changes or modifications to clinical protocols that do not affect—
        - (I) the validity of data or information resulting from the completion of an approved protocol, or the relationship of likely patient risk to benefit relied upon to approve a protocol;
        - (II) the scientific soundness of an investigational plan submitted under [paragraph (3)(A)](#g-3-A); or
        - (III) the rights, safety, or welfare of the human subjects involved in the investigation.
    - (B) Regulations under [subparagraph (A)](#g-6-A) shall provide that a change or modification described in such subparagraph may be made if—
      - (i) the [sponsor](/usc/21/360fff.md?p=8) of the investigation determines, on the basis of credible information (as defined by the [Secretary](/usc/21/321.md?p=d)) that the applicable conditions under [subparagraph (A)](#g-6-A) are met; and
      - (ii) the [sponsor](/usc/21/360fff.md?p=8) submits to the [Secretary](/usc/21/321.md?p=d), not later than 5 days after making the change or modification, a notice of the change or modification.
  - (7)
    - (A) In the case of a [person](/usc/21/321.md?p=e) intending to investigate the safety or effectiveness of a class III [device](/usc/21/321.md?p=h-1) or any implantable [device](/usc/21/321.md?p=h-1), the [Secretary](/usc/21/321.md?p=d) shall ensure that the [person](/usc/21/321.md?p=e) has an opportunity, prior to submitting an application to the [Secretary](/usc/21/321.md?p=d) or to an institutional review committee, to submit to the [Secretary](/usc/21/321.md?p=d), for review, an investigational plan (including a clinical protocol). If the applicant submits a written request for a meeting with the [Secretary](/usc/21/321.md?p=d) regarding such review, the [Secretary](/usc/21/321.md?p=d) shall, not later than 30 days after receiving the request, meet with the applicant for the purpose of reaching agreement regarding the investigational plan (including a clinical protocol). The written request shall include a detailed description of the [device](/usc/21/321.md?p=h-1), a detailed description of the proposed conditions of use of the [device](/usc/21/321.md?p=h-1), a proposed plan (including a clinical protocol) for determining whether there is a reasonable assurance of effectiveness, and, if available, information regarding the expected performance from the [device](/usc/21/321.md?p=h-1).
    - (B) Any agreement regarding the parameters of an investigational plan (including a clinical protocol) that is reached between the [Secretary](/usc/21/321.md?p=d) and a [sponsor](/usc/21/360fff.md?p=8) or applicant shall be reduced to writing and made part of the administrative record by the [Secretary](/usc/21/321.md?p=d). Any such agreement shall not be changed, except—
      - (i) with the written agreement of the [sponsor](/usc/21/360fff.md?p=8) or applicant; or
      - (ii) pursuant to a decision, made in accordance with [subparagraph (C)](#g-7-C) by the director of the office in which the [device](/usc/21/321.md?p=h-1) involved is reviewed, that a substantial scientific issue essential to determining the safety or effectiveness of the [device](/usc/21/321.md?p=h-1) involved has been identified.
    - (C) A decision under [subparagraph (B)(ii)](#g-7-B-ii) by the director shall be in writing, and may be made only after the [Secretary](/usc/21/321.md?p=d) has provided to the [sponsor](/usc/21/360fff.md?p=8) or applicant an opportunity for a meeting at which the director and the [sponsor](/usc/21/360fff.md?p=8) or applicant are present and at which the director documents the scientific issue involved.
  - (8)
    - (A) At any time, the [Secretary](/usc/21/321.md?p=d) may prohibit the [sponsor](/usc/21/360fff.md?p=8) of an investigation from conducting the investigation (referred to in this paragraph as a “clinical hold”) if the [Secretary](/usc/21/321.md?p=d) makes a determination described in [subparagraph (B)](#g-8-B). The [Secretary](/usc/21/321.md?p=d) shall specify the basis for the clinical hold, including the specific information available to the [Secretary](/usc/21/321.md?p=d) which served as the basis for such clinical hold, and confirm such determination in writing.
    - (B) For purposes of [subparagraph (A)](#g-8-A), a determination described in this subparagraph with respect to a clinical hold is a determination that—
      - (i) the [device](/usc/21/321.md?p=h-1) involved represents an unreasonable risk to the safety of the [persons](/usc/21/321.md?p=e) who are the subjects of the clinical investigation, taking into account the qualifications of the clinical investigators, information about the [device](/usc/21/321.md?p=h-1), the design of the clinical investigation, the condition for which the [device](/usc/21/321.md?p=h-1) is to be investigated, and the health status of the subjects involved; or
      - (ii) the clinical hold should be issued for such other reasons as the [Secretary](/usc/21/321.md?p=d) may by regulation establish.
    - (C) Any written request to the [Secretary](/usc/21/321.md?p=d) from the [sponsor](/usc/21/360fff.md?p=8) of an investigation that a clinical hold be removed shall receive a decision, in writing and specifying the reasons therefor, within 30 days after receipt of such request. Any such request shall include sufficient information to support the removal of such clinical hold.
  - (9)
    - (A)
      - (i) [^1] The [sponsor](/usc/21/360fff.md?p=8) of a [device](/usc/21/321.md?p=h-1) for which submission of an application for an investigational [device](/usc/21/321.md?p=h-1) exemption is required shall submit to the [Secretary](/usc/21/321.md?p=d) in such application a diversity action plan for clinical studies of the [device](/usc/21/321.md?p=h-1), in the form and manner specified in guidance issued by the [Secretary](/usc/21/321.md?p=d).
      - (ii) The [sponsor](/usc/21/360fff.md?p=8) of a [device](/usc/21/321.md?p=h-1) for which submission of an application for an investigational [device](/usc/21/321.md?p=h-1) exemption is not required, except for a [device](/usc/21/321.md?p=h-1) being studied as described in section 812.2(c) of title 21, Code of Federal Regulations (or successor regulations), shall develop a diversity action plan for any clinical study with respect to the [device](/usc/21/321.md?p=h-1). Such diversity action plan shall be submitted to the [Secretary](/usc/21/321.md?p=d) in any premarket notification under [section 360(k) of this title](/usc/21/360.md?p=k), request for classification under [section 360c(f)(2) of this title](/usc/21/360c.md?p=f-2), or application for premarket approval under [section 360e of this title](/usc/21/360e.md) for such [device](/usc/21/321.md?p=h-1).
    - (B) A diversity action plan under clause [(i)](#g-9-A-i) or [(ii)](#g-9-A-ii) of subparagraph (A) shall include—
      - (i) the [sponsor](/usc/21/360fff.md?p=8)’s goals for enrollment in the clinical study;
      - (ii) the [sponsor](/usc/21/360fff.md?p=8)’s rationale for such goals; and
      - (iii) an explanation of how the [sponsor](/usc/21/360fff.md?p=8) intends to meet such goals.
    - (C)
      - (i) On the initiative of the [Secretary](/usc/21/321.md?p=d) or at the request of a [sponsor](/usc/21/360fff.md?p=8), the [Secretary](/usc/21/321.md?p=d) may waive any requirement in subparagraph [(A)](#g-9-A) or [(B)](#g-9-B) if the [Secretary](/usc/21/321.md?p=d) determines that a waiver is necessary based on what is known or can be determined about the prevalence or incidence of the disease or condition for which the [device](/usc/21/321.md?p=h-1) is under investigation (including in terms of the patient population that may use the [device](/usc/21/321.md?p=h-1)), if conducting a clinical investigation in accordance with a diversity action plan would otherwise be impracticable, or if such waiver is necessary to protect public health during a public health emergency.
      - (ii) The [Secretary](/usc/21/321.md?p=d) shall issue a written response granting or denying a request from a [sponsor](/usc/21/360fff.md?p=8) for a waiver within 60 days of receiving such request.
    - (D) No diversity action plan shall be required for a submission described in [section 360bbb of this title](/usc/21/360bbb.md).
- (h) **Release of information respecting safety and effectiveness—**
  - (1) The [Secretary](/usc/21/321.md?p=d) shall promulgate regulations under which a detailed summary of information respecting the safety and effectiveness of a [device](/usc/21/321.md?p=h-1) which information was submitted to the [Secretary](/usc/21/321.md?p=d) and which was the basis for—
    - (A) an order under [section 360e(d)(1)(A) of this title](/usc/21/360e.md?p=d-1-A) approving an application for premarket approval for the [device](/usc/21/321.md?p=h-1) or denying approval of such an application or an order under [section 360e(e) of this title](/usc/21/360e.md?p=e) withdrawing approval of such an application for the [device](/usc/21/321.md?p=h-1),
    - (B) an order under [section 360e(f)(6)(A) of this title](/usc/21/360e.md?p=f-6-A) revoking an approved protocol for the [device](/usc/21/321.md?p=h-1), an order under [section 360e(f)(6)(B) of this title](/usc/21/360e.md?p=f-6-B) declaring a protocol for the [device](/usc/21/321.md?p=h-1) completed or not completed, or an order under [section 360e(f)(7) of this title](/usc/21/360e.md?p=f-7) revoking the approval of the [device](/usc/21/321.md?p=h-1), or
    - (C) an order approving an application under [subsection (g)](#g) for an exemption for the [device](/usc/21/321.md?p=h-1) from [section 360f of this title](/usc/21/360f.md) or an order disapproving, or withdrawing approval of, an application for an exemption under such subsection for the [device](/usc/21/321.md?p=h-1),

    shall be made available to the public upon issuance of the order. Summaries of information made available pursuant to this paragraph respecting a [device](/usc/21/321.md?p=h-1) shall include information respecting any adverse effects on health of the [device](/usc/21/321.md?p=h-1).

  - (2) The [Secretary](/usc/21/321.md?p=d) shall promulgate regulations under which each [advisory committee](/usc/21/360fff.md?p=1) established under [section 360e(g)(2)(B) of this title](/usc/21/360e.md?p=g-2-B) shall make available to the public a detailed summary of information respecting the safety and effectiveness of a [device](/usc/21/321.md?p=h-1) which information was submitted to the [advisory committee](/usc/21/360fff.md?p=1) and which was the basis for its recommendation to the [Secretary](/usc/21/321.md?p=d) made pursuant to [section 360e(g)(2)(A) of this title](/usc/21/360e.md?p=g-2-A). A summary of information upon which such a recommendation is based shall be made available pursuant to this paragraph only after the issuance of the order with respect to which the recommendation was made and each summary shall include information respecting any adverse effect on health of the [device](/usc/21/321.md?p=h-1) subject to such order.
  - (3) Except as provided in [paragraph (4)](#h-4), any information respecting a [device](/usc/21/321.md?p=h-1) which is made available pursuant to paragraph (1) or (2) of this subsection (A) may not be used to establish the safety or effectiveness of another [device](/usc/21/321.md?p=h-1) for purposes of this chapter by any [person](/usc/21/321.md?p=e) other than the [person](/usc/21/321.md?p=e) who submitted the information so made available, and (B) shall be made available subject to [subsection (c)](#c) of this section.
  - (4)
    - (A) Subject to [subparagraph (C)](#h-4-C), any information contained in an application for premarket approval filed with the [Secretary](/usc/21/321.md?p=d) pursuant to [section 360e(c) of this title](/usc/21/360e.md?p=c) (including information from clinical and preclinical tests or studies that demonstrate the safety and effectiveness of a [device](/usc/21/321.md?p=h-1), but excluding descriptions of methods of manufacture and [product](/usc/21/360eee.md?p=13) composition and other trade secrets) shall be available, 6 years after the application has been approved by the [Secretary](/usc/21/321.md?p=d), for use by the [Secretary](/usc/21/321.md?p=d) in—
      - (i) approving another [device](/usc/21/321.md?p=h-1);
      - (ii) determining whether a [product](/usc/21/360eee.md?p=13) development protocol has been completed, under [section 360e of this title](/usc/21/360e.md) for another [device](/usc/21/321.md?p=h-1);
      - (iii) establishing a performance standard or special control under this chapter; or
      - (iv) classifying or reclassifying another [device](/usc/21/321.md?p=h-1) under [section 360c of this title](/usc/21/360c.md) and [subsection (l)(2)](#l-2).
    - (B) The publicly available detailed summaries of information respecting the safety and effectiveness of [devices](/usc/21/321.md?p=h-1) required by [paragraph (1)(A)](#h-1-A) shall be available for use by the [Secretary](/usc/21/321.md?p=d) as the evidentiary basis for the agency actions described in [subparagraph (A)](#h-4-A).
    - (C) No information contained in an application for premarket approval filed with the [Secretary](/usc/21/321.md?p=d) pursuant to [section 360e(c) of this title](/usc/21/360e.md?p=c) may be used to approve or clear any application submitted under section [360e](/usc/21/360e.md) or [360(k)](/usc/21/360.md?p=k) of this title or to classify a [product](/usc/21/360eee.md?p=13) under [section 360c(f)(2) of this title](/usc/21/360c.md?p=f-2) for a combination [product](/usc/21/360eee.md?p=13) containing as a constituent part an approved [drug](/usc/21/321.md?p=g-1) (as defined in [section 353(g)(5)(B) of this title](/usc/21/353.md)) unless—
      - (i) the application includes the certification or statement referenced in [section 353(g)(5)(A) of this title](/usc/21/353.md);
      - (ii) the applicant provides notice as described in [section 353(g)(5)(A) of this title](/usc/21/353.md); and
      - (iii) the [Secretary](/usc/21/321.md?p=d)’s approval of such application is subject to the provisions in [section 353(g)(5)(C) of this title](/usc/21/353.md).
- (i) **Proceedings of advisory panels and committees—** Each panel under [section 360c of this title](/usc/21/360c.md) and each [advisory committee](/usc/21/360fff.md?p=1) established under section [360d(b)(5)(B)](/usc/21/360d.md?p=b-5-B) or [360e(g)](/usc/21/360e.md?p=g) of this title or under [subsection (f)](#f) of this section shall make and maintain a transcript of any proceeding of the panel or committee. Each such panel and committee shall delete from any transcript made pursuant to this subsection information which under [subsection (c)](#c) of this section is to be considered confidential.
- (j) **Traceability—** Except as provided in [section 360i(e) of this title](/usc/21/360i.md?p=e), no regulation under this chapter may impose on a type or class of [device](/usc/21/321.md?p=h-1) requirements for the traceability of such type or class of [device](/usc/21/321.md?p=h-1) unless such requirements are necessary to assure the protection of the public health.
- (k) **Research and development—** The [Secretary](/usc/21/321.md?p=d) may enter into contracts for research, testing, and demonstrations respecting [devices](/usc/21/321.md?p=h-1) and may obtain [devices](/usc/21/321.md?p=h-1) for research, testing, and demonstration purposes without regard to section 3324(a) and (b) of [title 31](/usc/31.md) and [section 6101 of title 41](/usc/41/6101.md).
- (l) **Transitional provisions for devices considered as new drugs—**
  - (1) Any [device](/usc/21/321.md?p=h-1) intended for human use—
    - (A) for which on May 28, 1976 (hereinafter in this subsection referred to as the “enactment date”) an approval of an application submitted under [section 355(b) of this title](/usc/21/355.md?p=b) was in effect;
    - (B) for which such an application was filed on or before the enactment date and with respect to which application no order of approval or refusing to approve had been issued on such date under subsection [(c)](#c) or [(d)](#d) of such section;
    - (C) for which on the enactment date an exemption under [subsection (i)](#i) of such section was in effect;
    - (D) which is within a type of [device](/usc/21/321.md?p=h-1) described in subparagraph [(A)](#l-1-A), [(B)](#l-1-B), or [(C)](#l-1-C) and is substantially equivalent to another [device](/usc/21/321.md?p=h-1) within that type;
    - (E) which the [Secretary](/usc/21/321.md?p=d) in a notice published in the Federal Register before the enactment date has declared to be a [new drug](/usc/21/321.md?p=p) subject to [section 355 of this title](/usc/21/355.md); or
    - (F) with respect to which on the enactment date an action is pending in a United States court under section [332](/usc/21/332.md), [333](/usc/21/333.md), or [334](/usc/21/334.md) of this title for an alleged violation of a provision of [section 331 of this title](/usc/21/331.md) which enforces a requirement of [section 355 of this title](/usc/21/355.md) or for an alleged violation of [section 355(a) of this title](/usc/21/355.md?p=a),

    is classified in class III unless the [Secretary](/usc/21/321.md?p=d) in response to a petition submitted under [paragraph (2)](#l-2) has classified such [device](/usc/21/321.md?p=h-1) in class I or II.

  - (2) The [Secretary](/usc/21/321.md?p=d) may initiate the reclassification of a [device](/usc/21/321.md?p=h-1) classified into class III under paragraph (1) of this subsection or the [manufacturer](/usc/21/360hh.md?p=3) or importer of a [device](/usc/21/321.md?p=h-1) classified under [paragraph (1)](#l-1) may petition the [Secretary](/usc/21/321.md?p=d) (in such form and manner as he shall prescribe) for the issuance of an order classifying the [device](/usc/21/321.md?p=h-1) in class I or class II. Within thirty days of the filing of such a petition, the [Secretary](/usc/21/321.md?p=d) shall notify the petitioner of any deficiencies in the petition which prevent the [Secretary](/usc/21/321.md?p=d) from making a decision on the petition. Except as provided in [paragraph (3)(D)(ii)](#l-3-D-ii), within one hundred and eighty days after the filing of a petition under this paragraph, the [Secretary](/usc/21/321.md?p=d) shall, after consultation with the appropriate panel under [section 360c of this title](/usc/21/360c.md), by order either deny the petition or order the classification, in accordance with the criteria prescribed by [section 360c(a)(1)(A) of this title](/usc/21/360c.md?p=a-1-A) or [360c(a)(1)(B)](/usc/21/360c.md?p=a-1-B) of this title, of the [device](/usc/21/321.md?p=h-1) in class I or class II.
  - (3)
    - (A) In the case of a [device](/usc/21/321.md?p=h-1) which is described in [paragraph (1)(A)](#l-1-A) and which is in class III—
      - (i) such [device](/usc/21/321.md?p=h-1) shall on the enactment date be considered a [device](/usc/21/321.md?p=h-1) with an approved application under [section 360e of this title](/usc/21/360e.md), and
      - (ii) the requirements applicable to such [device](/usc/21/321.md?p=h-1) before the enactment date under [section 355 of this title](/usc/21/355.md) shall continue to apply to such [device](/usc/21/321.md?p=h-1) until changed by the [Secretary](/usc/21/321.md?p=d) as [authorized](/usc/21/360eee.md?p=2) by this chapter.
    - (B) In the case of a [device](/usc/21/321.md?p=h-1) which is described in [paragraph (1)(B)](#l-1-B) and which is in class III, an application for such [device](/usc/21/321.md?p=h-1) shall be considered as having been filed under [section 360e of this title](/usc/21/360e.md) on the enactment date. The period in which the [Secretary](/usc/21/321.md?p=d) shall act on such application in accordance with [section 360e(d)(1) of this title](/usc/21/360e.md?p=d-1) shall be one hundred and eighty days from the enactment date (or such greater period as the [Secretary](/usc/21/321.md?p=d) and the applicant may agree upon after the [Secretary](/usc/21/321.md?p=d) has made the finding required by [section 360e(d)(1)(B)(i) of this title](/usc/21/360e.md?p=d-1-B-i)) less the number of days in the period beginning on the date an application for such [device](/usc/21/321.md?p=h-1) was filed under [section 355 of this title](/usc/21/355.md) and ending on the enactment date. After the expiration of such period such [device](/usc/21/321.md?p=h-1) is required, unless exempt under [subsection (g)](#g), to have in effect an approved application under [section 360e of this title](/usc/21/360e.md).
    - (C) A [device](/usc/21/321.md?p=h-1) which is described in [paragraph (1)(C)](#l-1-C) and which is in class III shall be considered a [new drug](/usc/21/321.md?p=p) until the expiration of the ninety-day period beginning on the date of the promulgation of regulations under [subsection (g)](#g) of this section. After the expiration of such period such [device](/usc/21/321.md?p=h-1) is required, unless exempt under [subsection (g)](#g), to have in effect an approved application under [section 360e of this title](/usc/21/360e.md).
    - (D)
      - (i) Except as provided in clauses [(ii)](#l-3-D-ii) and [(iii)](#l-3-D-iii), a [device](/usc/21/321.md?p=h-1) which is described in subparagraph [(D)](#l-1-D), [(E)](#l-1-E), or [(F)](#l-1-F) of paragraph (1) and which is in class III is required, unless exempt under [subsection (g)](#g) of this section, to have on and after sixty days after the enactment date in effect an approved application under [section 360e of this title](/usc/21/360e.md).
      - (ii) If—
        - (I) a petition is filed under [paragraph (2)](#l-2) for a [device](/usc/21/321.md?p=h-1) described in subparagraph [(D)](#l-1-D), [(E)](#l-1-E), or [(F)](#l-1-F) of paragraph (1), or
        - (II) an application for premarket approval is filed under [section 360e of this title](/usc/21/360e.md) for such a [device](/usc/21/321.md?p=h-1),

        within the sixty-day period beginning on the enactment date (or within such greater period as the [Secretary](/usc/21/321.md?p=d), after making the finding required under [section 360e(d)(1)(B) of this title](/usc/21/360e.md?p=d-1-B), and the petitioner or applicant may agree upon), the [Secretary](/usc/21/321.md?p=d) shall act on such petition or application in accordance with [paragraph (2)](#l-2) or [section 360e of this title](/usc/21/360e.md) except that the period within which the [Secretary](/usc/21/321.md?p=d) must act on the petition or application shall be within the one hundred and twenty-day period beginning on the date the petition or application is filed. If such a petition or application is filed within such sixty-day (or greater) period, clause (i) of this subparagraph shall not apply to such [device](/usc/21/321.md?p=h-1) before the expiration of such one hundred and twenty-day period, or if such petition is denied or such application is denied approval, before the date of such denial, whichever occurs first.

      - (iii) In the case of a [device](/usc/21/321.md?p=h-1) which is described in [subparagraph (E)](#l-1-E) of paragraph (1), which the [Secretary](/usc/21/321.md?p=d) in a notice published in the Federal Register after March 31, 1976, declared to be a [new drug](/usc/21/321.md?p=p) subject to [section 355 of this title](/usc/21/355.md), and which is in class III—
        - (I) the [device](/usc/21/321.md?p=h-1) shall, after eighteen months after the enactment date, have in effect an approved application under [section 360e of this title](/usc/21/360e.md) unless exempt under [subsection (g)](#g) of this section, and
        - (II) the [Secretary](/usc/21/321.md?p=d) may, during the period beginning one hundred and eighty days after the enactment date and ending eighteen months after such date, restrict the use of the [device](/usc/21/321.md?p=h-1) to investigational use by experts qualified by scientific training and experience to investigate the safety and effectiveness of such [device](/usc/21/321.md?p=h-1), and to investigational use in accordance with the requirements applicable under regulations under [subsection (g)](#g) of this section to investigational use of [devices](/usc/21/321.md?p=h-1) granted an exemption under such subsection.

        If the requirements under [subsection (g)](#g) of this section are made applicable to the investigational use of such a [device](/usc/21/321.md?p=h-1), they shall be made applicable in such a manner that the [device](/usc/21/321.md?p=h-1) shall be made reasonably available to physicians meeting appropriate qualifications prescribed by the [Secretary](/usc/21/321.md?p=d).

  - (4) Repealed. Pub. L. 105–115, title I, § 125(b)(2)(E), Nov. 21, 1997, 111 Stat. 2325.
  - (5)
    - (A) Before December 1, 1991, the [Secretary](/usc/21/321.md?p=d) shall by order require [manufacturers](/usc/21/360hh.md?p=3) of [devices](/usc/21/321.md?p=h-1) described in [paragraph (1)](#l-1), which are subject to revision of classification under [subparagraph (B)](#l-5-B), to submit to the [Secretary](/usc/21/321.md?p=d) a summary of and citation to any information known or otherwise available to the [manufacturers](/usc/21/360hh.md?p=3) respecting the [devices](/usc/21/321.md?p=h-1), including adverse safety or effectiveness information which has not been submitted under [section 360i of this title](/usc/21/360i.md). The [Secretary](/usc/21/321.md?p=d) may require a [manufacturer](/usc/21/360hh.md?p=3) to submit the adverse safety or effectiveness data for which a summary and citation were submitted, if such data are available to the [manufacturer](/usc/21/360hh.md?p=3).
    - (B) Except as provided in [subparagraph (C)](#l-5-C), after the issuance of an order under [subparagraph (A)](#l-5-A) but before December 1, 1992, the [Secretary](/usc/21/321.md?p=d) shall publish a regulation in the Federal Register for each [device](/usc/21/321.md?p=h-1) which is classified in class III under [paragraph (1)](#l-1) revising the classification of the [device](/usc/21/321.md?p=h-1) so that the [device](/usc/21/321.md?p=h-1) is classified into class I or class II, unless the regulation requires the [device](/usc/21/321.md?p=h-1) to remain in class III. In determining whether to revise the classification of a [device](/usc/21/321.md?p=h-1) or to require a [device](/usc/21/321.md?p=h-1) to remain in class III, the [Secretary](/usc/21/321.md?p=d) shall apply the criteria set forth in [section 360c(a) of this title](/usc/21/360c.md?p=a). Before the publication of a regulation requiring a [device](/usc/21/321.md?p=h-1) to remain in class III or revising its classification, the [Secretary](/usc/21/321.md?p=d) shall publish a proposed regulation respecting the classification of a [device](/usc/21/321.md?p=h-1) under this subparagraph and provide an opportunity for the submission of comments on any such regulation. No regulation under this subparagraph requiring a [device](/usc/21/321.md?p=h-1) to remain in class III or revising its classification may take effect before the expiration of 90 days from the date of the publication in the Federal Register of the proposed regulation.
    - (C) The [Secretary](/usc/21/321.md?p=d) may by notice published in the Federal Register extend the period prescribed by [subparagraph (B)](#l-5-B) for a [device](/usc/21/321.md?p=h-1) for an additional period not to exceed 1 year.
- (m) **Humanitarian device exemption—**
  - (1) To the extent consistent with the protection of the public health and safety and with ethical standards, it is the purpose of this subsection to encourage the discovery and use of [devices](/usc/21/321.md?p=h-1) intended to benefit patients in the treatment and diagnosis of diseases or conditions that affect not more than 8,000 individuals in the United States.
  - (2) The [Secretary](/usc/21/321.md?p=d) may grant a request for an exemption from the effectiveness requirements of sections [360d](/usc/21/360d.md) and [360e](/usc/21/360e.md) of this title for a [device](/usc/21/321.md?p=h-1) for which the [Secretary](/usc/21/321.md?p=d) finds that—
    - (A) the [device](/usc/21/321.md?p=h-1) is designed to treat or diagnose a disease or condition that affects not more than 8,000 individuals in the United States,
    - (B) the [device](/usc/21/321.md?p=h-1) would not be available to a [person](/usc/21/321.md?p=e) with a disease or condition referred to in [subparagraph (A)](#m-2-A) unless the [Secretary](/usc/21/321.md?p=d) grants such an exemption and there is no comparable [device](/usc/21/321.md?p=h-1), other than under this exemption, available to treat or diagnose such disease or condition, and
    - (C) the [device](/usc/21/321.md?p=h-1) will not expose patients to an unreasonable or significant risk of illness or injury and the probable benefit to health from the use of the [device](/usc/21/321.md?p=h-1) outweighs the risk of injury or illness from its use, taking into account the probable risks and benefits of currently available [devices](/usc/21/321.md?p=h-1) or alternative forms of treatment.

    The request shall be in the form of an application submitted to the [Secretary](/usc/21/321.md?p=d) and such application shall include the certification required under [section 282(j)(5)(B) of title 42](/usc/42/282.md?p=j-5-B) (which shall not be considered an element of such application). Not later than 75 days after the date of the receipt of the application, the [Secretary](/usc/21/321.md?p=d) shall issue an order approving or denying the application.

  - (3) Except as provided in [paragraph (6)](#m-6), no [person](/usc/21/321.md?p=e) granted an exemption under [paragraph (2)](#m-2) with respect to a [device](/usc/21/321.md?p=h-1) may sell the [device](/usc/21/321.md?p=h-1) for an amount that exceeds the costs of research and development, fabrication, and [distribution](/usc/21/360eee.md?p=5) of the [device](/usc/21/321.md?p=h-1).
  - (4) [Devices](/usc/21/321.md?p=h-1) granted an exemption under [paragraph (2)](#m-2) may only be used—
    - (A) in facilities in which clinical testing of [devices](/usc/21/321.md?p=h-1) is supervised by an institutional review committee established in accordance with the regulations of the [Secretary](/usc/21/321.md?p=d); and
    - (B) if, before the use of a [device](/usc/21/321.md?p=h-1), an institutional review committee or an appropriate local committee approves the use in the treatment or diagnosis of a disease or condition referred to in [paragraph (2)(A)](#m-2-A), unless a physician determines in an emergency situation that approval from an institutional review committee or an appropriate local committee can not be obtained in time to prevent serious harm or death to a patient.

    In a case described in [subparagraph (B)](#m-4-B) in which a physician uses a [device](/usc/21/321.md?p=h-1) without an approval from an institutional review committee or an appropriate local committee, the physician shall, after the use of the [device](/usc/21/321.md?p=h-1), notify the chairperson of the institutional review committee or an appropriate local committee of such use. Such notification shall include the identification of the patient involved, the date on which the [device](/usc/21/321.md?p=h-1) was used, and the reason for the use.

  - (5) The [Secretary](/usc/21/321.md?p=d) may require a [person](/usc/21/321.md?p=e) granted an exemption under [paragraph (2)](#m-2) to demonstrate continued compliance with the requirements of this subsection if the [Secretary](/usc/21/321.md?p=d) believes such demonstration to be necessary to protect the public health, if the [Secretary](/usc/21/321.md?p=d) has reason to believe that the requirements of [paragraph (6)](#m-6) are no longer met, or if the [Secretary](/usc/21/321.md?p=d) has reason to believe that the criteria for the exemption are no longer met. If the [person](/usc/21/321.md?p=e) granted an exemption under [paragraph (2)](#m-2) fails to demonstrate continued compliance with the requirements of this subsection, the [Secretary](/usc/21/321.md?p=d) may suspend or withdraw the exemption from the effectiveness requirements of sections [360d](/usc/21/360d.md) and [360e](/usc/21/360e.md) of this title for a humanitarian [device](/usc/21/321.md?p=h-1) only after providing notice and an opportunity for an [informal hearing](/usc/21/321.md?p=x).
  - (6)
    - (A) Except as provided in [subparagraph (D)](#m-6-D), the prohibition in [paragraph (3)](#m-3) shall not apply with respect to a [person](/usc/21/321.md?p=e) granted an exemption under [paragraph (2)](#m-2) if each of the following conditions apply:
      - (i) The [device](/usc/21/321.md?p=h-1) with respect to which the exemption is granted—
        - (I) is intended for the treatment or diagnosis of a disease or condition that occurs in pediatric patients or in a pediatric subpopulation, and such [device](/usc/21/321.md?p=h-1) is labeled for use in pediatric patients or in a pediatric subpopulation in which the disease or condition occurs; or
        - (II) is intended for the treatment or diagnosis of a disease or condition that does not occur in pediatric patients or that occurs in pediatric patients in such numbers that the development of the [device](/usc/21/321.md?p=h-1) for such patients is impossible, highly impracticable, or unsafe.
      - (ii) During any calendar year, the number of such [devices](/usc/21/321.md?p=h-1) distributed during that year under each exemption granted under this subsection does not exceed the annual [distribution](/usc/21/360eee.md?p=5) number for such [device](/usc/21/321.md?p=h-1). In this paragraph, the term “annual [distribution](/usc/21/360eee.md?p=5) number” means the number of such [devices](/usc/21/321.md?p=h-1) reasonably needed to treat, diagnose, or cure a population of 8,000 individuals in the United States. The [Secretary](/usc/21/321.md?p=d) shall determine the annual [distribution](/usc/21/360eee.md?p=5) number when the [Secretary](/usc/21/321.md?p=d) grants such exemption.
      - (iii) Such [person](/usc/21/321.md?p=e) immediately notifies the [Secretary](/usc/21/321.md?p=d) if the number of such [devices](/usc/21/321.md?p=h-1) distributed during any calendar year exceeds the annual [distribution](/usc/21/360eee.md?p=5) number referred to in [clause (ii)](#m-6-A-ii).
      - (iv) The request for such exemption is submitted on or before October 1, 2027.
    - (B) The [Secretary](/usc/21/321.md?p=d) may inspect the records relating to the number of [devices](/usc/21/321.md?p=h-1) distributed during any calendar year of a [person](/usc/21/321.md?p=e) granted an exemption under [paragraph (2)](#m-2) for which the prohibition in [paragraph (3)](#m-3) does not apply.
    - (C) A [person](/usc/21/321.md?p=e) may petition the [Secretary](/usc/21/321.md?p=d) to modify the annual [distribution](/usc/21/360eee.md?p=5) number determined by the [Secretary](/usc/21/321.md?p=d) under [subparagraph (A)(ii)](#m-6-A-ii) with respect to a [device](/usc/21/321.md?p=h-1) if additional information arises, and the [Secretary](/usc/21/321.md?p=d) may modify such annual [distribution](/usc/21/360eee.md?p=5) number.
    - (D) If a [person](/usc/21/321.md?p=e) notifies the [Secretary](/usc/21/321.md?p=d), or the [Secretary](/usc/21/321.md?p=d) determines through an inspection under [subparagraph (B)](#m-6-B), that the number of [devices](/usc/21/321.md?p=h-1) distributed during any calendar year exceeds the annual [distribution](/usc/21/360eee.md?p=5) number, as required under [subparagraph (A)(iii)](#m-6-A-iii), and modified under [subparagraph (C)](#m-6-C), if applicable, then the prohibition in [paragraph (3)](#m-3) shall apply with respect to such [person](/usc/21/321.md?p=e) for such [device](/usc/21/321.md?p=h-1) for any sales of such [device](/usc/21/321.md?p=h-1) after such notification.
    - (E)
      - (i) In this subsection, the term “pediatric patients” means patients who are 21 years of age or younger at the time of the diagnosis or treatment.
      - (ii) In this subsection, the term “pediatric subpopulation” means 1 of the following populations:
        - (I) Neonates.
        - (II) Infants.
        - (III) Children.
        - (IV) Adolescents.
  - (7) The [Secretary](/usc/21/321.md?p=d) shall refer any report of an adverse event regarding a [device](/usc/21/321.md?p=h-1) described in [paragraph (6)(A)(i)(I)](#m-6-A-i-I) for which the prohibition under [paragraph (3)](#m-3) does not apply pursuant to [paragraph (6)(A)](#m-6-A) that the [Secretary](/usc/21/321.md?p=d) receives to the Office of Pediatric Therapeutics, established under [section 393a of this title](/usc/21/393a.md). In considering the report, the Director of the Office of Pediatric Therapeutics, in consultation with experts in the Center for [Devices](/usc/21/321.md?p=h-1) and Radiological Health, shall provide for periodic review of the report by the Pediatric [Advisory Committee](/usc/21/360fff.md?p=1), including obtaining any recommendations of such committee regarding whether the [Secretary](/usc/21/321.md?p=d) should take action under this chapter in response to the report.
  - (8) The [Secretary](/usc/21/321.md?p=d), acting through the Office of Pediatric Therapeutics and the Center for [Devices](/usc/21/321.md?p=h-1) and Radiological Health, shall provide for an annual review by the Pediatric [Advisory Committee](/usc/21/360fff.md?p=1) of all [devices](/usc/21/321.md?p=h-1) described in [paragraph (6)(A)(i)(I)](#m-6-A-i-I) to ensure that the exemption under [paragraph (2)](#m-2) remains appropriate for the pediatric populations for which it is granted.
- (n) **Regulation of contact lenses as devices—**
  - (1) All contact lenses shall be deemed to be [devices](/usc/21/321.md?p=h-1) under [section 321(h) of this title](/usc/21/321.md?p=h).
  - (2) [Paragraph (1)](#n-1) shall not be construed as bearing on or being relevant to the question of whether any [product](/usc/21/360eee.md?p=13) other than a contact lens is a [device](/usc/21/321.md?p=h-1) as defined by [section 321(h) of this title](/usc/21/321.md?p=h) or a [drug](/usc/21/321.md?p=g-1) as defined by [section 321(g) of this title](/usc/21/321.md?p=g).
- (o) **Regulation of medical and certain decisions support software—**
  - (1) The term [device](/usc/21/321.md?p=h-1),[^2] as defined in [section 321(h) of this title](/usc/21/321.md?p=h), shall not include a software function that is intended—
    - (A) for administrative support of a health care facility, including the processing and maintenance of financial records, claims or billing information, appointment schedules, business analytics, information about patient populations, admissions, practice and inventory management, analysis of historical claims data to predict future utilization or cost-effectiveness, determination of health benefit eligibility, population health management, and laboratory workflow;
    - (B) for maintaining or encouraging a healthy lifestyle and is unrelated to the diagnosis, cure, mitigation, prevention, or treatment of a disease or condition;
    - (C) to serve as electronic patient records, including patient-provided information, to the extent that such records are intended to transfer, store, convert formats, or display the equivalent of a paper medical chart, so long as—
      - (i) such records were created, stored, transferred, or reviewed by health care professionals, or by individuals working under supervision of such professionals;
      - (ii) such records are part of health information technology that is certified under [section 300jj–11(c)(5) of title 42](/usc/42/300jj–11.md?p=c-5); and
      - (iii) such function is not intended to interpret or analyze patient records, including medical image data, for the purpose of the diagnosis, cure, mitigation, prevention, or treatment of a disease or condition;
    - (D) for transferring, storing, converting formats, or displaying clinical laboratory test or other [device](/usc/21/321.md?p=h-1) data and results, findings by a health care professional with respect to such data and results, general information about such findings, and general background information about such laboratory test or other [device](/usc/21/321.md?p=h-1), unless such function is intended to interpret or analyze clinical laboratory test or other [device](/usc/21/321.md?p=h-1) data, results, and findings; or
    - (E) unless the function is intended to acquire, process, or analyze a medical image or a signal from an in vitro diagnostic [device](/usc/21/321.md?p=h-1) or a pattern or signal from a signal acquisition system, for the purpose of—
      - (i) displaying, analyzing, or printing medical information about a patient or other medical information (such as peer-reviewed clinical studies and clinical practice guidelines);
      - (ii) supporting or providing recommendations to a health care professional about prevention, diagnosis, or treatment of a disease or condition; and
      - (iii) enabling such health care professional to independently review the basis for such recommendations that such software presents so that it is not the intent that such health care professional rely primarily on any of such recommendations to make a clinical diagnosis or treatment decision regarding an individual patient.
  - (2) In the case of a [product](/usc/21/360eee.md?p=13) with multiple functions that contains—
    - (A) at least one software function that meets the criteria under [paragraph (1)](#o-1) or that otherwise does not meet the definition of [device](/usc/21/321.md?p=h-1) under [section 321(h) of this title](/usc/21/321.md?p=h); and
    - (B) at least one function that does not meet the criteria under [paragraph (1)](#o-1) and that otherwise meets the definition of a [device](/usc/21/321.md?p=h-1) under [section 321(h) of this title](/usc/21/321.md?p=h),

    the [Secretary](/usc/21/321.md?p=d) shall not regulate the software function of such [product](/usc/21/360eee.md?p=13) described in [subparagraph (A)](#o-2-A) as a [device](/usc/21/321.md?p=h-1). Notwithstanding the preceding sentence, when assessing the safety and effectiveness of the [device](/usc/21/321.md?p=h-1) function or functions of such [product](/usc/21/360eee.md?p=13) described in [subparagraph (B)](#o-2-B), the [Secretary](/usc/21/321.md?p=d) may assess the impact that the software function or functions described in [subparagraph (A)](#o-2-A) have on such [device](/usc/21/321.md?p=h-1) function or functions.

  - (3)
    - (A) Notwithstanding [paragraph (1)](#o-1), a software function described in subparagraph [(C)](#o-1-C), [(D)](#o-1-D), or [(E)](#o-1-E) of paragraph (1) shall not be excluded from the definition of [device](/usc/21/321.md?p=h-1) under [section 321(h) of this title](/usc/21/321.md?p=h) if—
      - (i) the [Secretary](/usc/21/321.md?p=d) makes a finding that use of such software function would be reasonably likely to have serious adverse health consequences; and
      - (ii) the software function has been identified in a final order issued by the [Secretary](/usc/21/321.md?p=d) under [subparagraph (B)](#o-3-B).
    - (B) [Subparagraph (A)](#o-3-A) shall apply only if the [Secretary](/usc/21/321.md?p=d)—
      - (i) publishes a notification and proposed order in the Federal Register;
      - (ii) includes in such notification the [Secretary](/usc/21/321.md?p=d)’s finding, including the rationale and identification of the evidence on which such finding was based, as described in [subparagraph (A)(i)](#o-3-A-i); and
      - (iii) provides for a period of not less than 30 calendar days for public comment before issuing a final order or withdrawing such proposed order.
    - (C) In making a finding under [subparagraph (A)(i)](#o-3-A-i) with respect to a software function, the [Secretary](/usc/21/321.md?p=d) shall consider—
      - (i) the likelihood and severity of patient harm if the software function were to not perform as intended;
      - (ii) the extent to which the software function is intended to support the clinical judgment of a health care professional;
      - (iii) whether there is a reasonable opportunity for a health care professional to review the basis of the information or treatment recommendation provided by the software function; and
      - (iv) the intended user and user environment, such as whether a health care professional will use a software function of a type described in [subparagraph (E)](#o-1-E) of paragraph (1).
  - (4) Nothing in this subsection shall be construed as limiting the authority of the [Secretary](/usc/21/321.md?p=d) to—
    - (A) exercise enforcement discretion as to any [device](/usc/21/321.md?p=h-1) subject to regulation under this chapter;
    - (B) regulate software used in the manufacture and transfusion of blood and blood components to assist in the prevention of disease in humans; or
    - (C) regulate software as a [device](/usc/21/321.md?p=h-1) under this chapter if such software meets the criteria under [section 360c(a)(1)(C) of this title](/usc/21/360c.md?p=a-1-C).
- (p) **Diagnostic imaging devices intended for use with contrast agents—**
  - (1) **In general—** The [Secretary](/usc/21/321.md?p=d) may, subject to the succeeding provisions of this subsection, approve an application (or a supplement to such an application) submitted under [section 360e of this title](/usc/21/360e.md) with respect to an applicable medical imaging [device](/usc/21/321.md?p=h-1), or, in the case of an applicable medical imaging [device](/usc/21/321.md?p=h-1) for which a notification is submitted under [section 360(k) of this title](/usc/21/360.md?p=k), may make a substantial equivalence determination with respect to an applicable medical imaging [device](/usc/21/321.md?p=h-1), or may grant a request submitted under [section 360c(f)(2) of this title](/usc/21/360c.md?p=f-2) for an applicable medical imaging [device](/usc/21/321.md?p=h-1), if such application, notification, or request involves the use of a contrast agent that is not—
    - (A) in a concentration, rate of administration, or route of administration that is different from those described in the approved [labeling](/usc/21/321.md?p=m) of the contrast agent, except that the [Secretary](/usc/21/321.md?p=d) may approve such application, make such substantial equivalence determination, or grant such request if the [Secretary](/usc/21/321.md?p=d) determines that such differences in concentration, rate of administration, or route of administration exist but do not adversely affect the safety and effectiveness of the contrast agent when used with the [device](/usc/21/321.md?p=h-1);
    - (B) in a region, organ, or system of the body that is different from those described in the approved [labeling](/usc/21/321.md?p=m) of the contrast agent, except that the [Secretary](/usc/21/321.md?p=d) may approve such application, make such substantial equivalence determination, or grant such request if the [Secretary](/usc/21/321.md?p=d) determines that such differences in region, organ, or system of the body exist but do not adversely affect the safety and effectiveness of the contrast agent when used with the [device](/usc/21/321.md?p=h-1);
    - (C) in a patient population that is different from those described in the approved [labeling](/usc/21/321.md?p=m) of the contrast agent, except that the [Secretary](/usc/21/321.md?p=d) may approve such application, make such substantial equivalence determination, or grant such request if the [Secretary](/usc/21/321.md?p=d) determines such differences in patient population exist but do not adversely affect the safety and effectiveness of the contrast agent when used with the [device](/usc/21/321.md?p=h-1); or
    - (D) in an imaging modality that is different from those described in the approved [labeling](/usc/21/321.md?p=m) of the contrast agent.
  - (2) **Premarket review—** The agency center charged with premarket review of [devices](/usc/21/321.md?p=h-1) shall have primary jurisdiction with respect to the review of an application, notification, or request described in [paragraph (1)](#p-1). In conducting such review, such agency center may—
    - (A) consult with the agency center charged with the premarket review of [drugs](/usc/21/321.md?p=g-1) or biological [products](/usc/21/360eee.md?p=13); and
    - (B) review information and data provided to the [Secretary](/usc/21/321.md?p=d) by the [sponsor](/usc/21/360fff.md?p=8) of a contrast agent in an application submitted under [section 355 of this title](/usc/21/355.md) or [section 262 of title 42](/usc/42/262.md), so long as the [sponsor](/usc/21/360fff.md?p=8) of such contrast agent has provided to the [sponsor](/usc/21/360fff.md?p=8) of the applicable medical imaging [device](/usc/21/321.md?p=h-1) that is the subject of such review a right of reference and the application is submitted in accordance with this subsection.
  - (3) **Applicable requirements—** An application submitted under [section 360e of this title](/usc/21/360e.md), a notification submitted under [section 360(k) of this title](/usc/21/360.md?p=k), or a request submitted under [section 360c(f)(2) of this title](/usc/21/360c.md?p=f-2), as described in [paragraph (1)](#p-1), with respect to an applicable medical imaging [device](/usc/21/321.md?p=h-1) shall be subject to the requirements of such respective section. Such application, notification, or request shall only be subject to the requirements of this chapter applicable to [devices](/usc/21/321.md?p=h-1).
  - (4) **Definitions—** For purposes of this subsection—
    - (A) the term “applicable medical imaging [device](/usc/21/321.md?p=h-1)” means a [device](/usc/21/321.md?p=h-1) intended to be used in conjunction with a contrast agent (or class of contrast agents) for an imaging use that is not described in the approved [labeling](/usc/21/321.md?p=m) of such contrast agent (or the approved [labeling](/usc/21/321.md?p=m) of any contrast agent in the same class as such contrast agent); and
    - (B) the term “contrast agent” means a [drug](/usc/21/321.md?p=g-1) that is approved under [section 355 of this title](/usc/21/355.md) or [licensed](/usc/21/360eee.md?p=9) under [section 262 of title 42](/usc/42/262.md), is intended for use in conjunction with an applicable medical imaging [device](/usc/21/321.md?p=h-1), and—
      - (i) is a diagnostic radiopharmaceutical, as defined in section[^3] 315.2 and 601.31 of title 21, Code of Federal Regulations (or any successor regulations); or
      - (ii) is a diagnostic agent that improves the visualization of structure or function within the body by increasing the relative difference in signal intensity within the target tissue, structure, or fluid.
- (q) **Regulation of over-the-counter hearing aids—**
  - (1) **Definition—**
    - (A) **In general—** In this subsection, the term “over-the-counter hearing aid” means a [device](/usc/21/321.md?p=h-1) that—
      - (i) uses the same fundamental scientific technology as air conduction hearing aids (as defined in section 874.3300 of title 21, Code of Federal Regulations) (or any successor regulation) or wireless air conduction hearing aids (as defined in section 874.3305 of title 21, Code of Federal Regulations) (or any successor regulation);
      - (ii) is intended to be used by adults age 18 and older to compensate for perceived mild to moderate hearing impairment;
      - (iii) through tools, tests, or software, allows the user to control the over-the-counter hearing aid and customize it to the user’s hearing needs;
      - (iv) may—
        - (I) use wireless technology; or
        - (II) include tests for self-assessment of hearing loss; and
      - (v) is available over-the-counter, without the supervision, prescription, or other order, involvement, or intervention of a [licensed](/usc/21/360eee.md?p=9) [person](/usc/21/321.md?p=e), to consumers through in-[person](/usc/21/321.md?p=e) [transactions](/usc/21/360eee.md?p=24-A), by mail, or online.
    - (B) **Exception—** Such term does not include a personal sound amplification [product](/usc/21/360eee.md?p=13) intended to amplify sound for nonhearing impaired consumers in situations including hunting and bird-watching.
  - (2) **Regulation—** An over-the-counter hearing aid shall be subject to the regulations promulgated in accordance with section 709(b) of the FDA Reauthorization Act of 2017 and shall be exempt from sections 801.420 and 801.421 of title 21, Code of Federal Regulations (or any successor regulations).

## Footnotes

[^1]: See Delayed Applicability of Amendment note below.
[^2]: So in original. Probably should be “The term ‘device’,”.
[^3]: So in original. Probably should be “sections”.

## Source credit

(June 25, 1938, ch. 675, § 520, as added Pub. L. 94–295, § 2, May 28, 1976, 90 Stat. 565; amended Pub. L. 101–629, §§ 3(b)(2), 4(b)(2), 5(c)(2), 6(b)(2), 11, 14(a), 18(e), (f), Nov. 28, 1990, 104 Stat. 4514, 4516, 4518, 4519, 4522, 4524, 4529; Pub. L. 102–571, title I, § 107(10), Oct. 29, 1992, 106 Stat. 4499; Pub. L. 105–115, title I, § 125(b)(2)(E), title II, §§ 201(a), 203, 216(a)(1), title IV, § 410(a), Nov. 21, 1997, 111 Stat. 2325, 2332, 2334, 2349, 2372; Pub. L. 109–96, § 1, Nov. 9, 2005, 119 Stat. 2119; Pub. L. 110–85, title III, § 303(a), title VIII, § 801(b)(3)(E), Sept. 27, 2007, 121 Stat. 860, 921; Pub. L. 112–144, title V, § 507(c), title VI, §§ 601, 606, 613(a), 617, July 9, 2012, 126 Stat. 1045, 1051, 1054, 1060, 1062; Pub. L. 114–255, div. A, title III, §§ 3024(a), 3038(b), 3052(a), 3056, 3060(a), Dec. 13, 2016, 130 Stat. 1099, 1110, 1124, 1128, 1130; Pub. L. 115–52, title V, § 502(b), title VII, §§ 706(a), 709(a), Aug. 18, 2017, 131 Stat. 1037, 1058, 1065; Pub. L. 117–180, div. F, title V, § 5002, Sept. 30, 2022, 136 Stat. 2167; Pub. L. 117–229, div. C, title III, § 303, Dec. 16, 2022, 136 Stat. 2312; Pub. L. 117–286, § 4(a)(156), Dec. 27, 2022, 136 Stat. 4323; Pub. L. 117–328, div. FF, title III, §§ 3103, 3601(b), Dec. 29, 2022, 136 Stat. 5807, 5861.)

## Notes

### Delayed Applicability of Amendment

For provisions related to delayed applicability of subsection (g)(9) of this section as added by section 3601(b) of Pub. L. 117–328, see Effective Date of 2022 Amendment note set out under section 355 of this title.

### Editorial Notes

### References in Text

July 9, 2012, referred to in subsec. (b)(3), was in the original “the date of enactment of this section”, which was translated as meaning the date of enactment of Pub. L. 112–144, which amended subsec. (b) generally, to reflect the probable intent of Congress.

Section 709(b) of the FDA Reauthorization Act of 2017, referred to in subsec. (q)(2), is section 709(b) of Pub. L. 115–52, which is set out as a note below.

### Codification

In subsec. (k), “section 3324(a) and (b) of title 31 and section 6101 of title 41” substituted for “sections 3648 and 3709 of the Revised Statutes (31 U.S.C. 529, 41 U.S.C. 5)” on authority of Pub. L. 97–258, § 4(b), Sept. 13, 1982, 96 Stat. 1067, which Act enacted Title 31, Money and Finance, and Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.

### Amendments

2022—Subsec. (f)(3). Pub. L. 117–286 substituted “Section 1013 of title 5” for “Section 14 of the Federal Advisory Committee Act” in concluding provisions.

Subsec. (g)(9). Pub. L. 117–328, § 3601(b), added par. (9).

Subsec. (m)(6)(A)(iv). Pub. L. 117–328, § 3103, substituted “October 1, 2027” for “December 24, 2022”.

Pub. L. 117–229 substituted “December 24, 2022” for “December 17, 2022”.

Pub. L. 117–180 substituted “December 17” for “October 1”.

2017—Subsec. (m)(4). Pub. L. 115–52, § 502(b)(1)(B), inserted “or an appropriate local committee” after “review committee” in two places in concluding provisions.

Subsec. (m)(4)(B). Pub. L. 115–52, § 502(b)(1)(A), inserted “or an appropriate local committee” after “review committee” in two places.

Subsec. (m)(6)(A)(iv). Pub. L. 115–52, § 502(b)(2), substituted “2022” for “2017”.

Subsec. (p). Pub. L. 115–52, § 706(a), added subsec. (p).

Subsec. (q). Pub. L. 115–52, § 709(a), added subsec. (q). Amendment was executed to this section as amended by section 706(a) of Pub. L. 115–52, notwithstanding directory language referring to section as amended by section 708 of Pub. L. 115–52, which did not amend this section.

2016—Subsec. (g)(3). Pub. L. 114–255, § 3024(a)(2), substituted “subparagraph (D)(ii)” for “subparagraph (D)” in concluding provisions.

Subsec. (g)(3)(A)(i). Pub. L. 114–255, § 3056(1)(A), struck out “local” before “institutional review committee” and “which has been” before “established in accordance with”.

Subsec. (g)(3)(B). Pub. L. 114–255, § 3056(1)(B), substituted “an institutional” for “a local institutional”.

Subsec. (g)(3)(D). Pub. L. 114–255, § 3024(a)(1), substituted “except where, subject to such conditions as the Secretary may prescribe—” for “except where subject to such conditions as the Secretary may prescribe,”, added cl. (i), and inserted cl. (ii) designation before “the investigator”.

Subsec. (h)(4)(A). Pub. L. 114–255, § 3038(b)(1), substituted “Subject to subparagraph (C), any information” for “Any information” in introductory provisions.

Subsec. (h)(4)(C). Pub. L. 114–255, § 3038(b)(2), added subpar. (C).

Subsec. (m)(1). Pub. L. 114–255, § 3052(a)(1), substituted “not more than 8,000” for “fewer than 4,000”.

Subsec. (m)(2)(A). Pub. L. 114–255, § 3052(a)(2), substituted “not more than 8,000” for “fewer than 4,000”.

Subsec. (m)(4). Pub. L. 114–255, § 3056(2)(C), struck out “local” after “chairperson of the” in concluding provisions.

Subsec. (m)(4)(A). Pub. L. 114–255, § 3056(2)(A), added subpar. (A) and struck out former subpar. (A) which read as follows: “in facilities that have established, in accordance with regulations of the Secretary, a local institutional review committee to supervise clinical testing of devices in the facilities, and”.

Subsec. (m)(4)(B). Pub. L. 114–255, § 3056(2)(B), substituted “an institutional” for “a local institutional”.

Subsec. (m)(6)(A)(ii). Pub. L. 114–255, § 3052(a)(3), substituted “8,000” for “4,000”.

Subsec. (o). Pub. L. 114–255, § 3060(a), added subsec. (o).

2012—Subsec. (b). Pub. L. 112–144, § 617, amended subsec. (b) generally. Prior to amendment, subsec. (b) related to custom devices.

Subsec. (g)(2)(B)(ii). Pub. L. 112–144, § 601(1), inserted “safety or effectiveness” before “data obtained”.

Subsec. (g)(4)(C). Pub. L. 112–144, § 601(2), added subpar. (C).

Subsec. (g)(8). Pub. L. 112–144, § 606, added par. (8).

Subsec. (m)(6)(A)(i). Pub. L. 112–144, § 613(a)(1)(A)(i), added cl. (i) and struck out former cl. (i) which read as follows:

“(i)(I) The device with respect to which the exemption is granted is intended for the treatment or diagnosis of a disease or condition that occurs in pediatric patients or in a pediatric subpopulation, and such device is labeled for use in pediatric patients or in a pediatric subpopulation in which the disease or condition occurs.

“(II) The device was not previously approved under this subsection for the pediatric patients or the pediatric subpopulation described in subclause (I) prior to September 27, 2007.”

Subsec. (m)(6)(A)(ii). Pub. L. 112–144, § 613(a)(1)(A)(ii), added cl. (ii) and struck out former cl. (ii) which read as follows: “During any calendar year, the number of such devices distributed during that year does not exceed the annual distribution number specified by the Secretary when the Secretary grants such exemption. The annual distribution number shall be based on the number of individuals affected by the disease or condition that such device is intended to treat, diagnose, or cure, and of that number, the number of individuals likely to use the device, and the number of devices reasonably necessary to treat such individuals. In no case shall the annual distribution number exceed the number identified in paragraph (2)(A).”

Subsec. (m)(6)(A)(iv). Pub. L. 112–144, § 507(c), substituted “2017” for “2012”.

Subsec. (m)(6)(C). Pub. L. 112–144, § 613(a)(1)(B), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: “A person may petition the Secretary to modify the annual distribution number specified by the Secretary under subparagraph (A)(ii) with respect to a device if additional information on the number of individuals affected by the disease or condition arises, and the Secretary may modify such number but in no case shall the annual distribution number exceed the number identified in paragraph (2)(A).”

Subsec. (m)(7). Pub. L. 112–144, § 613(a)(2), substituted “regarding a device described in paragraph (6)(A)(i)(I)” for “regarding a device”.

Subsec. (m)(8). Pub. L. 112–144, § 613(a)(3), substituted “of all devices described in paragraph (6)(A)(i)(I)” for “of all devices described in paragraph (6)”.

2007—Subsec. (m)(2). Pub. L. 110–85, § 801(b)(3)(E), inserted before period at end of first sentence of concluding provisions “and such application shall include the certification required under section 282(j)(5)(B) of title 42 (which shall not be considered an element of such application)”.

Subsec. (m)(3). Pub. L. 110–85, § 303(a)(1), substituted “Except as provided in paragraph (6), no” for “No”.

Subsec. (m)(5). Pub. L. 110–85, § 303(a)(2), inserted “, if the Secretary has reason to believe that the requirements of paragraph (6) are no longer met,” after “public health” and inserted at end “If the person granted an exemption under paragraph (2) fails to demonstrate continued compliance with the requirements of this subsection, the Secretary may suspend or withdraw the exemption from the effectiveness requirements of sections 360d and 360e of this title for a humanitarian device only after providing notice and an opportunity for an informal hearing.”

Subsec. (m)(6) to (8). Pub. L. 110–85, § 303(a)(3), added pars. (6) to (8) and struck out former par. (6) which read as follows: “The Secretary may suspend or withdraw an exemption from the effectiveness requirements of sections 360d and 360e of this title for a humanitarian device only after providing notice and an opportunity for an informal hearing.”

2005—Subsec. (n). Pub. L. 109–96 added subsec. (n).

1997—Subsec. (f)(1)(B)(iii). Pub. L. 105–115, § 410(a), added cl. (iii).

Subsec. (g)(6), (7). Pub. L. 105–115, § 201(a), added pars. (6) and (7).

Subsec. (h)(4). Pub. L. 105–115, § 216(a)(1), amended par. (4) generally. Prior to amendment, par. (4) related to premarket approval of devices.

Subsec. (l). Pub. L. 105–115, § 125(b)(2)(E), struck out “or antibiotic drugs” after “new drugs” in heading.

Subsec. (l)(4). Pub. L. 105–115, § 125(b)(2)(E), struck out par. (4) which read as follows: “Any device intended for human use which on the enactment date was subject to the requirements of section 357 of this title shall be subject to such requirements as follows:

“(A) In the case of such a device which is classified into class I, such requirements shall apply to such device until the effective date of the regulation classifying the device into such class.

“(B) In the case of such a device which is classified into class II, such requirements shall apply to such device until the effective date of a performance standard applicable to the device under section 360d of this title.

“(C) In the case of such a device which is classified into class III, such requirements shall apply to such device until the date on which the device is required to have in effect an approved application under section 360e of this title.”

Subsec. (m)(2). Pub. L. 105–115, § 203(1), inserted at end “The request shall be in the form of an application submitted to the Secretary. Not later than 75 days after the date of the receipt of the application, the Secretary shall issue an order approving or denying the application.”

Subsec. (m)(4). Pub. L. 105–115, § 203(2)(B), inserted at end “In a case described in subparagraph (B) in which a physician uses a device without an approval from an institutional review committee, the physician shall, after the use of the device, notify the chairperson of the local institutional review committee of such use. Such notification shall include the identification of the patient involved, the date on which the device was used, and the reason for the use.”

Subsec. (m)(4)(B). Pub. L. 105–115, § 203(2)(A), inserted before period at end “, unless a physician determines in an emergency situation that approval from a local institutional review committee can not be obtained in time to prevent serious harm or death to a patient”.

Subsec. (m)(5). Pub. L. 105–115, § 203(3), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “An exemption under paragraph (2) shall be for a term of 18 months and may only be initially granted in the 5-year period beginning on the date regulations under paragraph (6) take effect. The Secretary may extend such an exemption for a period of 18 months if the Secretary is able to make the findings set forth in paragraph (2) and if the applicant supplies information demonstrating compliance with paragraph (3). An exemption may be extended more than once and may be extended after the expiration of such 5-year period.”

Subsec. (m)(6). Pub. L. 105–115, § 203(4), amended par. (6) generally. Prior to amendment, par. (6) read as follows: “Within one year of November 28, 1990, the Secretary shall issue regulations to implement this subsection.”

1992—Subsec. (g)(2)(A). Pub. L. 102–571 substituted “379e” for “376”.

1990—Subsec. (c). Pub. L. 101–629, § 11(1), substituted “from class III to class II or class I” for “under section 360c of this title from class III to class II” and inserted “(1) in accordance with subsection (h), and (2)” after “except”.

Subsec. (f)(1)(A). Pub. L. 101–629, § 18(e), inserted “pre-production design validation (including a process to assess the performance of a device but not including an evaluation of the safety or effectiveness of a device),” after “manufacture,”.

Subsec. (h)(3). Pub. L. 101–629, § 11(2)(A), substituted “Except as provided in paragraph (4), any” for “Any”.

Subsec. (h)(4). Pub. L. 101–629, § 11(2)(B), added par. (4).

Subsec. (i). Pub. L. 101–629, § 6(b)(2), substituted “section 360d(b)(5)(B)” for “section 360d(g)(5)(B)”.

Subsec. (j). Pub. L. 101–629, § 3(b)(2), substituted “Except as provided in section 360i(e) of this title, no” for “No”.

Subsec. (l)(2). Pub. L. 101–629, § 18(f), struck out “and after affording the petitioner an opportunity for an informal hearing” after “under this paragraph”.

Pub. L. 101–629, § 5(c)(2), substituted “The Secretary may initiate the reclassification of a device classified into class III under paragraph (1) of this subsection or the manufacturer” for “The manufacturer”.

Subsec. (l)(5). Pub. L. 101–629, § 4(b)(2), added par. (5).

Subsec. (m). Pub. L. 101–629, § 14(a), added subsec. (m).

### Statutory Notes and Related Subsidiaries

### Effective Date of 2022 Amendment

Subsec. (g)(9) of this section, as added by section 3601(b) of Pub. L. 117–328, applicable only with respect to clinical investigations for which enrollment commences after the date that is 180 days after the publication of final guidance required under section 3602 of Pub. L. 117–328, see section 3602(c) of Pub. L. 117–328, set out as a note under section 355 of this title.

### Effective Date of 1997 Amendment

Amendment by sections 201(a), 203, 216(a)(1), and 410(a) of Pub. L. 105–115 effective 90 days after Nov. 21, 1997, except as otherwise provided, see section 501 of Pub. L. 105–115, set out as a note under section 321 of this title.

### Effective Date of 1990 Amendment

Pub. L. 101–629, § 14(b), Nov. 28, 1990, 104 Stat. 4525, provided that: “Subsection (m) of section 520 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 360j(m)], as added by the amendment made by subsection (a), shall take effect on the effective date of the regulations issued by the Secretary under paragraph (6) of such subsection.”

### Regulations and Guidance Concerning Over-the-Counter Hearing Aids

Pub. L. 115–52, title VII, § 709(b), (c), Aug. 18, 2017, 131 Stat. 1066, 1067, provided that:Regulations To Establish Category.— In general.—The Secretary of Health and Human Services (referred to in this section [amending this section and enacting this note] as the ‘Secretary’), not later than 3 years after the date of enactment of this Act [Aug. 18, 2017], shall promulgate proposed regulations to establish a category of over-the-counter hearing aids, as defined in subsection (q) of section 520 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360j) as amended by subsection (a), and, not later than 180 days after the date on which the public comment period on the proposed regulations closes, shall issue such final regulations. Requirements.—In promulgating the regulations under paragraph (1), the Secretary shall— include requirements that provide reasonable assurances of the safety and effectiveness of over-the-counter hearing aids; include requirements that establish or adopt output limits appropriate for over-the-counter hearing aids; include requirements for appropriate labeling of over-the-counter hearing aids, including requirements that such labeling include a conspicuous statement that the device is only intended for adults age 18 and older, information on how consumers may report adverse events, information on any contraindications, conditions, or symptoms of medically treatable causes of hearing loss, and advisements to consult promptly with a licensed health care practitioner; and describe the requirements under which the sale of over-the-counter hearing aids is permitted, without the supervision, prescription, or other order, involvement, or intervention of a licensed person, to consumers through in-person transactions, by mail, or online. Premarket notification.—The Secretary shall make findings under section 510(m) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360(m)) to determine whether over-the-counter hearing aids (as defined in section 520(q) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360j[(q)]), as amended by subsection (a)) require a report under section 510(k) [21 U.S.C. 360(k)] to provide reasonable assurance of safety and effectiveness. Effect on state law.—No State or local government shall establish or continue in effect any law, regulation, order, or other requirement specifically related to hearing products that would restrict or interfere with the servicing, marketing, sale, dispensing, use, customer support, or distribution of over-the-counter hearing aids (as defined in section 520(q) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360j[(q)]), as amended by subsection (a)) through in-person transactions, by mail, or online, that is different from, in addition to, or otherwise not identical to, the regulations promulgated under this subsection, including any State or local requirement for the supervision, prescription, or other order, involvement, or intervention of a licensed person for consumers to access over-the-counter hearing aids. No effect on private remedies.—Nothing in this section shall be construed to modify or otherwise affect the ability of any person to exercise a private right of action under any State or Federal product liability, tort, warranty, contract, or consumer protection law. New Guidance Issued.—Not later than the date on which final regulations are issued under subsection (b), the Secretary shall update and finalize the draft guidance of the Department of Health and Human Services entitled ‘Regulatory Requirements for Hearing Aid Devices and Personal Sound Amplification Products’, issued on November 7, 2013. Such updated and finalized guidance shall clarify which products, on the basis of claims or other marketing, advertising, or labeling material, meet the definition of a device in section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321) and which products meet the definition of a personal sound amplification product, as set forth in such guidance.”

### Guidance Document on Probable Benefit

Pub. L. 114–255, div. A, title III, § 3052(b), Dec. 13, 2016, 130 Stat. 1125, provided that: “Not later than 18 months after the date of enactment of this Act [Dec. 13, 2016], the Secretary of Health and Human Services, acting through the Commissioner of Food and Drugs, shall publish a draft guidance that defines the criteria for establishing ‘probable benefit’ as that term is used in section 520(m)(2)(C) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360j(m)(2)(C)).”

### Reports

Pub. L. 114–255, div. A, title III, § 3060(b), Dec. 13, 2016, 130 Stat. 1132, provided that: “The Secretary of Health and Human Services (referred to in this subsection as the ‘Secretary’), after consultation with agencies and offices of the Department of Health and Human Services involved in health information technology, shall publish a report, not later than 2 years after the date of enactment of this Act [Dec. 13, 2016] and every 2 years thereafter, that— includes input from outside experts, such as representatives of patients, consumers, health care providers, startup companies, health plans or other third-party payers, venture capital investors, information technology vendors, health information technology vendors, small businesses, purchasers, employers, and other stakeholders with relevant expertise, as determined by the Secretary; examines information available to the Secretary on any risks and benefits to health associated with software functions described in section 520(o)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360j[(o)(1)]) (as amended by subsection (a)); and summarizes findings regarding the impact of such software functions on patient safety, including best practices to promote safety, education, and competency related to such functions.”

### Applicability to Existing Devices

Pub. L. 112–144, title VI, § 613(b), July 9, 2012, 126 Stat. 1061, provided that: “A sponsor of a device for which an exemption was approved under paragraph (2) of section 520(m) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360j(m)) before the date of enactment of this Act [July 9, 2012] may seek a determination under subclause (I) or (II) of section 520(m)(6)(A)(i) (as amended by subsection (a)). If the Secretary of Health and Human Services determines that such subclause (I) or (II) applies with respect to a device, clauses (ii), (iii), and (iv) of subparagraph (A) and subparagraphs (B), (C), (D), and (E) of paragraph (6) of such section 520(m) shall apply to such device, and the Secretary shall determine the annual distribution number for purposes of clause (ii) of such subparagraph (A) when making the determination under this subsection.”

### Guidance

Pub. L. 110–85, title III, § 303(c), Sept. 27, 2007, 121 Stat. 862, provided that: “Not later than 180 days after the date of the enactment of this Act [Sept. 27, 2007], the Commissioner of Food and Drugs shall issue guidance for institutional review committees on how to evaluate requests for approval for devices for which a humanitarian device exemption under section 520(m)(2) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360j(m)(2)) has been granted.”

Pub. L. 107–250, title II, § 213, Oct. 26, 2002, 116 Stat. 1614, provided that: “Not later than 270 days after the date of the enactment of this Act [Oct. 26, 2002], the Secretary of Health and Human Services shall issue guidance on the following: The type of information necessary to provide reasonable assurance of the safety and effectiveness of medical devices intended for use in pediatric populations. Protections for pediatric subjects in clinical investigations of the safety or effectiveness of such devices.”

### Report on Humanitarian Device Exemptions

Pub. L. 101–629, § 14(c), Nov. 28, 1990, 104 Stat. 4525, directed Secretary of Health and Human Services, within 4 years after issuance of regulations under 21 U.S.C. 360j(m)(6), to report to Congress on types of devices exempted, an evaluation of effects of such section, and a recommendation on extension of the section.

### References in Other Laws to GS–16, 17, or 18 Pay Rates

References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, § 101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5.