Transfer of 510(k) Notification: Agency GFI Recommendations

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Transfer of a Premarket Notification
(510(k)) Clearance – Questions and
Answers
Draft Guidance for Industry and
Food and Drug Administration Staff

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DRAFT GUIDANCE

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This guidance document is being distributed for comment purposes only.

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Document issued on December 22, 2014.

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You should submit comments and suggestions regarding this draft document within 90 days of
publication in the Federal Register of the notice announcing the availability of the draft
guidance. Submit electronic comments to http://www.regulations.gov. Submit written
comments to the Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Identify all comments
with the docket number listed in the notice of availability that publishes in the Federal
Register.
For questions about this document regarding CDRH-regulated devices, contact the Premarket
Notification (510(k)) Staff at 301-796-5640.
For questions about this document regarding CBER-regulated devices, contact the Office of
Communication, Outreach, and Development (OCOD) at 1-800-835-4709 or 240-402-7800.
For questions regarding the FDA Unified Registration and Listing System, please contact
Registration and Listing at [email protected] or 301-796-7400, Option 1.

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U.S. Department of Health and Human Services
Food and Drug Administration
Center for Devices and Radiological Health
Center for Biologics Evaluation and Research

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Preface

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Additional Copies

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CDRH

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CBER

Additional copies are available from the Internet. You may also send an e-mail request to
[email protected] to receive a copy of the guidance. Please use the document
number 1808 to identify the guidance you are requesting.

Additional copies of this guidance are also available from the Center for Biologics Evaluation
and Research (CBER), by written request, Office of Communication, Outreach, and
Development (OCOD), 10903 New Hampshire Avenue, Rm. 3128, Silver Spring, MD
20993-0002, or by calling 1-800-835-4709 or 240-402-7800, by email, [email protected], or
from the Internet at
http://www.fda.gov/BiologicsBloodVaccines/GuidanceComplianceRegulatoryInform
ation/Guidances/default.htm.

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Transfer of a Premarket Notification
(510(k)) Clearance – Questions and
Answers

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Draft Guidance for Industry and
Food and Drug Administration Staff

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This draft guidance, when finalized, will represent the Food and Drug Administration's
(FDA's) current thinking on this topic. It does not create or confer any rights for or on
any person and does not operate to bind FDA or the public. You can use an alternative
approach if the approach satisfies the requirements of the applicable statutes and
regulations. If you want to discuss an alternative approach, contact the FDA staff or
Office responsible for implementing this guidance. If you cannot identify the appropriate
FDA staff, call the appropriate number listed on the title page of this guidance.

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I.

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Introduction

This draft guidance provides information on how to notify FDA of the transfer of a 510(k)
clearance from one person to another, and the procedures FDA and industry should use to
ensure public information in FDA’s databases about the current 510(k) holder for a specific
device(s) is accurate and up-to-date.
FDA's guidance documents, including this guidance, do not establish legally enforceable
responsibilities. Instead, guidances describe the Agency's current thinking on a topic and
should be viewed only as recommendations, unless specific regulatory or statutory
requirements are cited. The use of the word should in Agency guidances means that
something is suggested or recommended, but not required.

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II. Background

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Each person who is required to register must obtain FDA clearance of a premarket
notification (510(k)) prior to introducing or delivering for introduction into interstate
commerce for commercial distribution a device intended for human use that is not 510(k)exempt.1 However, when a 510(k) clearance for a specific device is sold or transferred from
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See Federal Food, Drug, and Cosmetic Act (FD&C Act) sections 510(k), 513(i), and 515 (21 U.S.C.
§§ 360(k), 360c(i), and 360e) and 21 CFR 807.81(a), 807.100(a).

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one person to another and the device is not significantly changed or modified, FDA does not
expect the submission of a new 510(k).2 FDA commonly receives notifications from
individuals claiming that a 510(k)-clearance has been transferred to them from a previous
510(k) holder. Tracking such transfers, however, has been challenging because FDA has
been unable to identify and contact all previous 510(k) holders to establish a sequence of
historical transfers of a particular 510(k). Until recently, FDA’s databases did not reflect
changes in the 510(k) holder that occurred after FDA’s clearance of the 510(k). This was in
part because 510(k) holders were not required to list their devices by 510(k) number, which
made it difficult for FDA to tie a particular 510(k) to its current holder. Lack of updated,
accurate 510(k) holder information created a number of challenges for FDA, for current
510(k) holders, future 510(k) submitters, and other stakeholders.
The Food and Drug Administration Amendments Act of 2007 (FDAAA) (Pub. L. 110-85)
amended section 510 of the FD&C Act by requiring domestic and foreign device
establishments to begin submitting their registration and device listing information to FDA
by electronic means rather than on paper forms,3 and also specified the timeframes within
which establishments are required to submit such information.4 In accordance with FDAAA,
the agency launched FDA’s Unified Registration and Listing System (FURLS), an Internetbased registration and listing system.5
On August 2, 2012, FDA modified the regulations in 21 CFR part 807 to reflect statutory
amendments to the device registration and listing provisions of the FD&C Act.6 FDA also
added a requirement that the FDA-assigned premarket submission number of cleared 510(k)
devices be included with device listing information.7 When an owner or operator creates a
listing for a 510(k) device as a manufacturer, specification developer, repacker/relabeler,
single-use device reprocessor, or remanufacturer, this signals to FDA that they are the current
510(k) holder for that device, because these entities are responsible for the commercial
distribution of the device. Listing information is required to be updated at least annually8 and
there may only be one 510(k) holder for a device at a time;9 therefore, this provides FDA
with current 510(k) holder information by 510(k) number.

III. Definitions
For purposes of this guidance, we will use the following definitions:

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See 21 CFR 807.81(a) and 42 FR 42523 (August 23, 1977).
See FD&C Act section 510(p) (21 U.S.C. § 360(p)).
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See FD&C Act sections 510(b)(2), (i), and (j) (21 U.S.C. §§ 360(b)(2), (i), and (j)).
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See 77 FR 45927 (August 2, 2012).
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See id.
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See 21 CFR 807.25(g)(4).
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See FD&C Act section 510(j) (21 U.S.C. § 360(j)) and 21 CFR 807.22.
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See FD&C Act section 510(k) (21 U.S.C. § 360(k)) and 21 CFR 807.81(a).
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1. “510(k) device”
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2. “Person”
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the person who possesses the 510(k) clearance for a device (an FDA determination
that a particular device has been found to be substantially equivalent to another device
under sections 513(f)(1) and 513(i) of the FD&C Act) (21 U.S.C. §§ 360c(f)(1) and
(i))

IV. Access to Current 510(k) Holder Information
1. How can I obtain information on the current holder of a 510(k) that is under the
purview of CDRH if I know the 510(k) number?
To find information about the current holder of a CDRH 510(k):

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includes individuals, partnerships, corporations, and associations as defined under
section 201(e) of the FD&C Act (21 U.S.C. § 321(e))

3. “510(k) holder”

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a device which was found to be substantially equivalent to another device under
sections 513(f)(1) and 513(i) of the FD&C Act (21 U.S.C. §§ 360c(f)(1) and (i))

Locate the CDRH 510(k) database
(http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfPMN/pmn.cfm)
Type the 510(k) number in the “510K Number” field10
Click on the “Search” button
FDA plans to link the 510(k) database to FURLS, which will provide the most up to
date information available on the current holder of a 510(k).

The CDRH 510(k) database is publicly available. By linking the CDRH 510(k) database to
FURLS, FDA is using information from the FURLS database to provide the most up-to-date
information available on the current holder of a 510(k).
2. How can I obtain information on the current holder of a 510(k) that is under the
purview of CBER if I know the 510(k) number?
Information about the current holder of a CBER 510(k) should also be available in the CDRH
510(k) database as described above for CDRH 510(k)s. If you cannot locate the 510(k) in the

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Other terms entered into this search function may also locate the 510(k) and the current holder of the 510(k),
but using the 510(k) number when available is recommended as the most efficient way to obtain this
information.

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CDRH 510(k) database, information is also available on CBER’s website.
(http://www.fda.gov/BiologicsBloodVaccines/ucm121134.htm)

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V.

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Questions and Answers on Notifying FDA of a
Transfer of a 510(k) Clearance

1. When should I report that I have bought, sold, or otherwise transferred a 510(k)
clearance?
Notification of FDA of a sale or other transfer of a 510(k) clearance, whether or not the
device is already on the market, is accomplished via compliance with listing requirements.
As discussed above, as a result of the launch of the FURLS Device Registration and Listing
Module (DRLM) and the changes to the registration and listing regulations that became
effective on October 1, 2012,11 the medical device listing information provided to FDA has
changed. Owners and operators of medical device establishments that market 510(k)-cleared
devices must now supply the FDA-assigned premarket submission number of the cleared
510(k) when they list their devices in FURLS.12 This allows FDA to easily identify the holder
of each 510(k) based on the records created by manufacturers, specification developers,
repackers/relabelers, single-use device reprocessors, or remanufacturers in FURLS DRLM.
Because contract manufacturers and sterilizers, foreign exporters, and foreign private label
distributors are not responsible for the commercial distribution of devices, they would not be
510(k) holders, and should list the product under their customer’s 510(k) number once it has
been listed by the 510(k) holder. Any entity that fails to list as required renders the device
misbranded.13
New establishments are required to register and list within 30 days of entering into an
operation described in 21 CFR 807.20(a).14 In addition, 510(k) holders are required to review
and update their Registration15 and Listing16 information at least annually. Persons may also
update their Registration and Listing information at other times, for example subsequent to a
sale or purchase of a 510(k), instead of waiting for the requisite annual update.17 There is no
fee additional to the annual registration fee for such updates.
2. What happens if more than one person claims to be the 510(k) holder for a
particular device at the same time?
If two persons claim to be the 510(k) holder for a particular device, for example by
registering and listing the same 510(k) number during the same annual registration and listing
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See 77 FR 45927 (August 2, 2012).
See 21 CFR 807.25(g)(4).
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See FD&C Act sections 502(o) and 510(j) (21 U.S.C. §§ 352(o) and 360(j)).
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See 21 CFR 807.22(a).
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See FD&C Act section 510(b)(2) (21 U.S.C. § 360(b)(2)) (Domestic) and 21 CFR 807.22(b)(1); FD&C Act
section 510(i) (21 U.S.C. § 360(i)) (Foreign).
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See FD&C Act section 510(j)(2) (21 U.S.C. § 360(j)(2)) and 21 CFR 807.22(b)(3).
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See 21 CFR 807.22(b)(4).
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period, the database will show the person who listed their device most recently until the issue
is resolved. FDA will contact both persons claiming to be the 510(k) holder and attempt to
determine the rightful 510(k) holder. In the event of a dispute, a court order, attestation from
a previous, uncontested 510(k) holder, legal instrument such as a contract or will, and/or
other documentation of the sequence of historical transfers of the 510(k) clearance, up to and
including the current holder, may be submitted as evidence to establish the current 510(k)
holder and support updating the information in the FURLS database. The person determined
not to be the 510(k) holder would be in violation of the FD&C Act if they were marketing a
device without required 510(k) clearance.
3. Who should maintain information documenting the transfer of a 510(k) clearance?
We recommend that the current 510(k) holder maintain information documenting the transfer
of a 510(k) clearance in its 510(k) files.

VI. Question and Answer about CLIA Categorizations
1. What should I submit upon transfer of a 510(k) clearance to ensure the CLIA
categorization of my device is accurate?
FDA is responsible for the categorization of commercially marketed in vitro diagnostic tests
under the Clinical Laboratory Improvement Amendments of 1988 (CLIA).18 FDA
recommends that where the name of a cleared device changes, or the name of the
manufacturer or distributor changes, the manufacturer should submit the updated label to
FDA so FDA can ensure that the CLIA categorization of the device is accurate and update its
record of the categorized test with the appropriate 510(k) holder and device information. See
“Guidance for Industry and FDA Staff: Administrative Procedures for CLIA Categorization,”
available at
http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/uc
m070762.htm. The new 510(k) holder should submit a letter to the Agency (at U.S. Food
and Drug Administration, Center for Devices and Radiological Health, Document Mail
Center – WO66-G609, 10903 New Hampshire Avenue, Silver Spring, MD 20993-0002)
citing the 510(k) number, and identifying the submission as a CLIA Categorization Update.
The new 510(k) holder should include a copy of the package insert that will be distributed
with the device.

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See 64 FR 73561(December 30, 1999).

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