On Friday, July 29, 2011, the Institute of Medicine of the National Academies (IOM) released its long awaited report on the premarket clearance process under section 510(k) of the Federal Food Drug and Cosmetic Act.[1] The premarket clearance submission, commonly known as a 510(k), allows manufacturers to market a medical device based on its similarity, or “substantial equivalence,” to one or more marketed devices (called “predicate devices”). The 510(k) process is the most widely used pathway for marketing medical devices through the U.S. Food and Drug Administration (“FDA”), and is intended for intermediate risk devices.[2] The report was anticipated to provide clear action items to the agency to strengthen the 510(k) process and make it more responsive to companies developing emerging medical technology. Instead, the recommendations made by the IOM committee only heighten the current uncertainty with the future direction of the 510(k) process.

The IOM committee was convened sixteen (16) months ago to address perceived problems with the 510(k) process based on comments from groups such as Public Citizen regarding the safety and effectiveness of 510(k) cleared devices and concerns raised following the clearance and subsequent rescission of the ReGen Biologics Menaflex Collagen Meniscus Implant.[3] The FDA tasked the IOM committee with answering the following questions...