Clinical Trial Data Are Presumptively Confidential, Opines EU Advocate General

In a long-running legal case challenging the European Medicines Agency’s approach to disclosure of clinical trial data, Advocate General Hogan has recommended that the Court of Justice find that such data are presumptively confidential when handling disclosure requests under the Transparency Regulation 1049/2001.

PTC Therapeutics International Limited (“PTC”) had argued before the General Court that a clinical study report it submitted to the EMA in support of marketing authorisation for its ultra-orphan drug Translarna was presumptively confidential and should not be disclosed to a competitor.  However, this position was dismissed by the General Court of the EU in early 2018.

On appeal to the Court of Justice, however, PTC argued that the General Court had erred in arriving at that decision, raising a number of grounds, including that on a proper interpretation of the relationship between the Regulation No 726/2004 and Regulation No 1049/2001, the report at issue is covered in its entirety by a general presumption of confidentiality.  In his opinion, AG Hogan disagreed with the General Court’s assessment of the relevant legislation, noting in particular that Article 39(3) of the TRIPs Agreement provides that data must be protected against disclosure unless steps are taken to ensure that such data are protected against unfair commercial use.  On this point, the General Court stated in paragraph 91 of the judgment under appeal that ‘potential misuse of the report at issue by a competitor is not in itself a ground for considering that information is commercially confidential under Regulation No 1049/2001’.  AG Hogan explained that while this statement is correct so far as it goes when it comes to considering the ‘commercial confidentiality’ exception in the first indent of Article 4(2) of Regulation No 1049/2001, it did not ensure that release of undisclosed data would not undermine the data and marketing exclusivity of the originator company, particularly in countries outside the EU.

As such, AG Hogan considered that the General Court had erred in law in so far as it concluded that there was no general presumption that CSRs should not be disclosed by reference to the first indent Article 4(2) of Regulation No 1049/2001.  AG Hogan also considered that the General Court had erred in law in so far as it concluded that the disclosure of the report at issue would not compromise the appellant’s commercial interests for the purposes of the first indent of Article 4(2) of Regulation No 1049/2001.  The AG added, however, that the EMA does not need to rely on the presumption of confidentiality.  In practice, though, this would likely make a finding by the EMA that certain data are not commercially confidential more difficult in cases of detailed and individualised assessment of clinical study reports.  The AG opinion is non-binding and it will now be for the Court of Justice to assess the case in light of this opinion.

The opinion can be accessed here.

Another appeal brought by a veterinary pharmaceutical company in relation to pre-clinical study reports was heard in parallel and AG Hogan reached the same conclusion.  That case can be accessed here.

Covington acted for the appellants in both cases. If you have any questions concerning the material discussed in this blog post, please contact the following members of our life sciences team: Brian Kelly, Grant Castle, Sarah Cowlishaw or Katharina Ewert.

Regulatory Watch: How has recent Law No 2019-774 of 24 July 2019 on the organization and transformation of the health system changed the anti-gift rules?

French “anti-gift” rules strictly regulate the relationship between the life sciences industry and healthcare professionals (“HCP”) and the possibility for companies active in the health sector to offer benefits, in cash or in kind to healthcare professionals, medical students or associations representing them.  This includes a general prohibition against offering such benefits.

To strengthen the existing regulatory framework, France has taken several additional actions and significantly amended the anti-gift provisions, by an Ordinance dated 19 January 2017 (“2017 Ordinance”).  The new provisions, Articles L1453-3 and following of the French Public Health Code (Code de la Santé Publique or “CSP”), entered into force on 1 July 2018.  However, companies affected remain in a grey zone until the publication of implementing texts, that should be available in autumn 2019.

Law No 2019-774 sets out new rules, in particular, on training, hospital locations, video health consultations, and plans for the creation of a new data platform which will collect, organise and make available national healthcare data.  Among the new provisions, Law No 2019-774 further elaborated the anti-gift provisions of the Public Health Code.

First, Law No 2019-774 ratifies the 2017 Ordinance, so that text becomes law.  Ratification was needed to maintain the validity of the 2017 Ordinance for the future.

Second, article 77 of the law provide some changes to the anti-gift rules.

Article L1453-5 of the Public Health Code has been modified to clarify the scope of the anti-gift rules.  Under the 2017 Ordinance, the scope of the rules has been broadened and all pharmaceutical companies are now subject to the anti-gift rules regardless whether or not they have products on the market in France.  In addition, the law brings within the scope of the anti-gift rules products that are covered by the national health insurance system (‘social security’) even if the ANSM (the French authority for health products) does not regulate them.  Examples include clinical nutrition products.

As an exception to the general prohibition on the offer of benefits to HCPs, it is possible to offer benefits of negligible value.  The amount of these benefits of negligible value by category of benefit (i.e., meals included in normal working relationships, books, office supplies, items of medical utility, etc.) will be defined in an implementing text that should be published in the coming months.  In addition, Law No 2019-774 specifies that the maximum amount per benefit must be defined over a specified period of time (Article L1453-6, 4°).

Law No 2019-774 also expressly prevents professional ethics boards (conseils nationaux professionnels) from receiving any donations or grants in cash or in kind (Article L1453-7, 3°).

Finally, hospitality during scientific or professional meetings or promotional events cannot be offered to healthcare students and student associations anymore, in order to minimize or even eliminate any pressure on students and put an end to influential practices that are quite common in training places such as universities or health institutions (Article L1453-7, 4°).

Moreover, article 78 of the law also introduces a new definition under the sunshine rules.  Influencers are now expressly covered by the transparency requirements.  Article L1453-1, 7° states that companies marketing relevant products shall make available on a public website the existence of any agreement, and any benefits and fees granted to “persons who, in the media or on social networks, present one or more health products in such a way as to influence the public.”

French medicines regulator produces first in Europe medical devices cybersecurity guidelines

France’s medicines regulator, the Agence Nationale de Sécurité du Médicament et des Produits de Santé (ANSM), has released draft guidelines, currently subject to a public consultation, setting out recommendations for manufacturers designed to help prevent cybersecurity attacks to medical devices. Notably, the draft guidelines are the first instance of recommendations released by a national regulator in Europe that apply cybersecurity considerations specifically to medical devices. The full ANSM draft guidelines, ‘Cybersécurité des dispositifs médicaux intégrant du logiciel au cours de leur cycle de vie’ (‘Cybersecurity of medical devices integrating software during their life cycle’) published 19 July 2019, is available in French here, and in English here.

The draft guidelines note that while the European regulatory framework (the Medical Devices Regulation 2017/745 and In Vitro Diagnostic Medical Devices Regulation 2017 /746) has been modified “in line with technological developments” (e.g. “data exchange, monitoring, risk prediction and control software”) to include software within the definition of a medical device, and accompanying security and performance requirements specific to such medical devices incorporating software, the “[medical device and in vitro diagnostic medical device r]egulations do not explicitly refer to or elaborate on the notion of cybersecurity”. For the purposes of the guidelines, ‘cybersecurity’ is described as “the full set of technical or organisational measures set up to ensure the integrity and availability of a [medical device] and the confidentiality of the information held on or output by this [medical device] against the risk of targeted attacks.”  Continue Reading

UK regulator provides further ‘no deal’ Brexit guidance for medical devices regulation

On 26 February, the UK’s Medicines and Healthcare products Regulatory Agency (MHRA) published further guidance (available here) setting out the anticipated regulation of medical devices in the UK, should the UK leave the EU without a deal (Guidance).  This Guidance will apply from ‘exit day’ (expected to be 11 p.m. 29 March 2019) subject to the (currently draft) Medical Devices (Amendment) (EU Exit) Regulations 2019 (UK MDR 2019) (available here) being passed by UK Parliament. This latest Guidance follows on from the MHRA’s previous ‘no deal’ scenario further guidance note in January regarding medicines, medical devices and clinical trials regulation (available here).

  1. Legislative Background

The Medical Devices Regulations 2002 (UK MDR 2002) implement Directives 90/385/EEC, 93/42/EEC and 98/79/EC on active implantable medical devices, medical devices, and in vitro diagnostic medical devices (IVDs), respectively (EU Directives) into UK law.  Pursuant to the European Union (Withdrawal) Act 2018, the UK MDR 2002 will continue to apply.

Continue Reading

European Commission publishes Letter on Exemption allowing for UK Batch Testing post-Brexit

On 21 February 2019, the European Commission wrote to the European Medicines Agency (“EMA”) and the Heads of Medicines Agencies of the EU-27 Member States concerning the acceptability of UK batch testing after Brexit (see the letter here).  The letter seeks to address concerns that a number of pharmaceutical companies will not have been able to adjust their pharmaceutical supply chains to provide for quality control testing and batch release of product in the EU-27 and to reflect these changes in relevant marketing authorizations in time for a no-deal Brexit if that occurs on 29 March 2019.  The Commission gives EU-27 (or EEA-30) regulators scope to accept the results of quality control and batch release testing in the UK, provided that marketing authorization holders (“MAHs”) submit valid requests for an exemption before 29 March 2019.

The UK will become a third country vis-à-vis the EU-27 at midnight CET on 29 March 2019, unless the parties agree an extension under Article 50 of the Treaty on European Union or a transitional period, e.g., by ratifying the Withdrawal Agreement.

This means that the rules for imports from third countries will apply to medicines  entering the EU-27 from the UK.  Specifically, Directives 2001/82/EC and 2001/83/EC require that: (a) medicinal products imported from third countries undergo quality control testing in the EU/EEA; and (b) the qualified person within an appropriately authorized batch release site within the EU/EEA batch releases the product onto the EEA market.

The Commission’s letter allows competent authorities to permit MAHs, manufacturers and importers of medicinal products coming from third countries “in justifiable cases” to have third parties carry out certain controls (Article 20(b) of Directive 2001/83/EC and Article 24(b) of Directive 2001/82/EC).  With this in mind, competent authorities may grant MAHs an exemption allowing them to rely on UK quality control testing for a limited period after Brexit.  The exemption is subject to the following conditions:

  1. A batch release site in the EU27 is identified by the marketing authorisation holder by the withdrawal date.
  2. The batch release site is supervised by a qualified person established in the EU27 by the withdrawal date.
  3. The establishment designated by the third party conducting the quality control testing may be verified by a competent authority of the EU27, including on the spot checks.
  4. All necessary steps have been taken to prepare the transfer of the quality control testing site from the United Kingdom to the EU27.

MAHs must notify their intention to rely on the exemption immediately and in any event before 29 March 2019 either to their national competent authority or to the EMA  for centrally authorized products:

“In the notification the marketing authorisation holder must:

  • specify the batch release site in the EU27.
  • confirm that the qualified person established in the EU27 is responsible for the quality control testing site in the United Kingdom.
  • confirm and set out their precise timetable for transfer of the quality control testing site (which should allow the process to be completed quickly and in principle by the end of 2019 at the latest).
  • specify the period of time and batches (packs and quantities) that are requested to be exempted. This should be strictly restricted to what is necessary.
  • commit to providing batch testing results for those batches from the existing facilities within the United Kingdom.
  • transfer samples of those tested batches together with the testing results to the batch release site in the EU27 in due time to make them available for inspection.”

Under this special procedure, which falls outside the scope of the Variations Regulation (EC) No. 1234/2008, the EMA or national competent authority will assess the notification and if justified, grant the exemption “for the time period strictly necessary and for the specific batches identified.”  The relevant authority will notify the MAH about the grant of the exemption in writing.  The MAH shall provide a copy of the confirmation to the competent authority responsible for the batch release site.  The effect of the exemption is that the qualified person may batch release UK-control tested products for the EU-27 (or EEA-30) market.

In the absence of an exemption, products entering the EEA-30 from the UK must undergo both control testing and batch release in the EU/EEA before they can be placed on the those markets.  In this context, the Commission also reminds MAHs of their obligation to notify any anticipated disruption of supply two months in advance.  This means, if companies anticipate Brexit-related supply issues, they should notify the relevant competent authorities now.

This exemption would not apply if the EU-27 and the UK are able to ratify the Withdrawal Agreement.  The terms of that Agreement provide for a transitional period until the end of 2020, during which the medicines regime will continue to apply to and in the UK.  Thus, MAHs could continue to rely on UK quality control testing during such a period.

Reconciling Personalized Nutrition with the GDPR

As with anything personalized, be it advertising, medicines or training schedules, also personalized nutrition — using information on individual characteristics to develop targeted nutritional advice, products, or services — risks being affected by the feared GDPR.  Kristof Van Quathem discusses the topic in Vitafoods’ Insights magazine of January 2019, available here.

European Data Protection Board releases Guidance on Intersection of the GDPR and the Clinical Trials Regulation

The European Data Protection Board (“Board”) released an opinion on January 23, 2019, on the intersection between the EU General Data Protection Regulation (“GDPR”) and the Clinical Trials Regulation (“CTR”).  The opinion considers a Q&A on this topic prepared by the European Commission’s Directorate General for Health.  The Directorate General decided to create this Q&A because of perceived contradictions between the GDPR and the CTR, in particular in relation to the legal basis (e.g., the use of consent) and the further use of clinical trial data. (See also here). Continue Reading

Proposed Changes to UK Allergen Labelling Law


The Department for Environment, Food & Rural Affairs (“DEFRA”) has announced a consultation regarding proposed changes to allergen labelling laws for food prepacked for direct sale in the UK.

This follows the death of Natasha Ednan-Laperouse in July 2016, which was the result of an allergic reaction after consuming a baguette from Pret a Manger that contained sesame seeds. The coroner’s inquest in September 2018 found that Pret’s allergen labelling system was “inadequate”, as the allergen stickers on food display units (which instructed consumers to ask staff for details of allergens) were not sufficiently visible. In response, Environment Secretary Michael Gove promised an overhaul of allergen labelling law to avoid such incidents in the future. The current consultation follows Gove’s meeting with retailers, specialists and allergy groups in December 2018.

Current Position

Currently, allergen labelling in the UK is covered by the Food Information Regulation 1169/2011 (“Food Information Regulation”). The Food Information Regulation states that prepacked food must include allergen information either on the packaging or an attached label. Food business operators (“FBOs”) also have to provide allergen information for non-prepackaged food (i.e., food offered for sale without prepackaging, or packed on sales premises at the consumer’s request or prepacked for direct sale).

However, FBOs can provide allergen information for non-prepackaged food by any means they choose. The Regulation leaves it open to Member States to impose stricter allergen labelling measures. Some Member States have taken a more restrictive approach. In France, for example, allergen information for non-prepacked food must be in writing, on the food itself or close to it, in a way that excludes any uncertainty. In Ireland, all allergen information must be provided to consumers in writing, at the point of presentation, sale or supply. In contrast, the UK gave FBOs more freedom, allowing them to make allergen information for non-prepacked food available by any means they choose, including orally.

Continue Reading

The Implications of the GDPR on Clinical Trials in Europe

On October 22, 2018, the European Federation of Pharmaceutical Industries in cooperation with the Future of Privacy Forum and the Center for Information Policy Leadership organized a workshop entitled “Can GDPR Work for Health Research.”  In the first session, the workshop discussed the implications of the General Data Protection Regulation (“GDPR”) on clinical trials in the EU.  The second session was devoted to further use of health data for scientific research.  Among other things, this session discussed the relationship between the Clinical Trials Regulation (“CTR”) and the GDPR.

The CTR appears to subject further use of clinical trial data (i.e., any use outside the protocol) to consent.  In a note available here, we point out that such a reading is overly restrictive.  At the very least, the derogations in the GDPR for the use of health data for scientific research without consent should continue to apply.

UK Government Issues “No Deal” Brexit Notices for the Food & Beverage Sector

Over the past months, the Government has regularly  posted technical guidance notices on what it calls a “no deal” Brexit, i.e., a scenario in which the UK and the EU will not reach an agreement and the UK will become a third country on 29 March 2019.  The UK Government has now published four notices addressed specifically to UK food and beverage producers outlining its plans for a no-deal Brexit.  The notices emphasise that the Government believes a no-deal scenario is unlikely, and essentially summarise the Government’s policy decision on certain key issues.  Key areas covered by the notices include geographical indications, food labelling and exports of food containing ingredients of animal origin.  These are discussed further below.

Geographical indications (“GIs”)

The Government indicates that it is keen to protect UK products that benefit from a GI, and if no agreement is reached then it intends to set up its own GI scheme.  The Government argues that it will “broadly mirror the EU regime and be no more burdensome to producers”.  Businesses will have to wait until early 2019 for detailed guidance on what it will involve, but the notice confirms the following:

  • The scheme will be compliant with the World Trade Organisation (“WTO”) Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”).
  • All 86 UK GIs currently protected under the EU scheme will automatically be given new UK GI status.
  • The UK would not have to recognise EU GI status anymore.

Producers will need to adjust product packaging/labelling to include the new UK GI logo.

It is unclear whether, following a no-deal Brexit, current UK GIs would still be protected under the EU regime.  The UK Government assumes that existing UK GIs “will continue to be protected by the EU’s GI schemes”, but this is not guaranteed.  If current UK GIs are not protected under the EU regime after 29 March 2019, then UK producers wishing to regain EU GI status will need to submit applications to the European Commission as third country producers.  The notice also highlights that companies should consider applying for EU Collective Marks or EU Certification Marks through the EU Intellectual Property Office (“EUIPO”) or the World International Property Organisation (“WIPO”).

The Government has recently launched a consultation for its proposed GI scheme. Responses may be submitted until 1 November 2018 on the DEFRA website.

Food labelling

The Government’s no-deal Brexit notice on food labelling raises two main issues.

First, labels on products manufactured in the UK would no longer fall within the scope of “EU” as a descriptor of origin.  This applies to both products sold in the UK and the EU.

Second, food products sold in the EU are required to include on the label the name and address of a responsible food business operator (“FBO”) which must be located in an EU Member State, or failing that, the details of the relevant importer.  In case of a no-deal Brexit, food sold in the UK must bear the details of either a UK-based FBO or the UK importer.  Similarly, food sold in the EU-27 must bear the details of an EU FBO or the relevant EU importer.

The Government intends to consult with stakeholders on the wider implications.  There will be a six month transitional period during which companies are still permitted to sell products labelled with an EU FBO.  Similarly, goods already labelled and placed on the market with only an EU FBO address may be sold until stocks run out.

Foods containing products of animal origin

Currently, most foods containing products of animal origin do not require any certification to be exported from the UK to other EU Member States, and vice versa.  However, following a no-deal Brexit, UK producers wishing to export foods containing animal products to the EU would need to obtain an Export Health Certificate (“EHC”) from the Animal and Plant Health Agency (“APHA”); or in Northern Ireland, the Department of Agriculture, Environment and Rural Affairs (“DAERA”).  The Government is working on simplifying the EHC application process and ensuring that there is “enough capacity amongst appropriately trained veterinarians or authorised signatories to approve the additional certificates”.  Stakeholders will be informed of any changes to the existing process.

In addition, in a no-deal Brexit scenario all exports of UK food containing animal products to Member States would have to be inspected and signed off at an (approved) Border Inspection Post within the EU, in order to permit onward travel.  The establishment in the UK from which the food of animal origin is prepared, obtained, or dispatched, must also be included in the list of registered establishments held by the European Commission.

A no-deal scenario therefore poses expensive and time-consuming regulatory hurdles for UK producers of food containing animal products.  Moreover, the EU will need to grant the UK listed third country status, otherwise no exports from the UK to the EU can take place.  The UK Government intends to apply for listed third country status and is confident that the EU will grant it, but the timing for this is uncertain.

Requirements for UK businesses exporting to third countries outside the EU should not change, other than the wording of the documentation which would have to reflect the fact the UK was no longer an EU Member State.  Such changes in wording would have to be agreed with the destination country.  DEFRA “will work to agree updates for all existing EHCs, prioritising the countries to which the UK exports the highest volumes”.

Tariffs and customs duties

The no-deal notices do not directly address tariffs and customs issues relating to food and beverage producers, but the Government has issued general guidance about what tariffs and customs would look like in the event of a no-deal Brexit.  Trade with the EU will be on WTO terms.  Currently the UK is part of the EU’s WTO Schedule of Concessions annexed to the General Agreement on Trade in Goods (“GATT”).  The UK and the EU reached an agreement which proposed that the UK would largely replicate the EU’s GATT Schedule, with tariff-rate quotas (“TRQs”) that largely affect agricultural and food products to be apportioned between the EU and the UK.  A number of WTO Members have challenged this approach, and we can expect to see further development in this area over the coming months.

The general notice highlights that in the case of a no-deal Brexit, the UK would not be able to trade with EU Member States on more favourable terms (than the WTO Schedules) until a separate free trade agreement was implemented.  The EU will therefore require payment of customs duty at the rate under the EU’s Common Customs tariff (“CCT”).  For EU goods imported into the UK, the UK will require a payment of customs duty at the rate set by the UK Government.  HM Treasury is set to establish a new UK trade tariff.


The notices restate the principle of the European Union (Withdrawal) Act 2018 that any existing EU legislation will be transposed into UK domestic law on the day before Brexit.  Government Ministers will then pass Statutory Instruments to address any gaps that might result from the transposition.  These should hopefully bring the required clarity.  Although the Government has indicated in these notices that it thinks a “no deal” scenario is unlikely, producers should ensure that they are well-prepared given the current uncertainty.  In the short term, supply chain disruption is likely to be the most pressing issue for producers, but they will also need to consider how to approach issues around labelling, GIs, and manufacturing standards.  Food and drink producers will need to bear in mind that the UK Government may make unilateral deviations from EU labelling rules, considering for instance the Government’s proposed review of allergen labelling on food products.  Such unilateral deviations would lead to increased costs and be likely to give rise to legal issues in the future.  Food and beverage producers not accustomed to dealing with non-EU/global tariffs will also need to find relevant expertise to help them deal with navigating the complex system of tariffs outside the EU.


“Producing food products protected by a ‘geographical indication’ if there’s no Brexit deal”

“Producing and labelling food if there’s no Brexit deal”

“Exporting animals and animal products if there’s no Brexit deal”