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Statement of Need: The agency is proposing this action because it is concerned that during a potential chemical or biological terrorism event, delaying the use of investigational products may threaten the lives of subjects. In many instances, there may also be others who have been exposed to or be at risk of exposure to a dangerous chemical or biological agent.

Summary of the Legal Basis: FDA believes the statutory authority provided in the Federal Food, Drug, and Cosmetic Act (the Act) would permit a limited exception to obtaining informed consent for chemical or biological terrorism events. The Act specifically states when an exception from informed consent is permissible. The statutory provision governing informed consent for investigational devices 520(g)(3)(D) of the Act, provides that informed consent is required unless the clinical investigator determines in writing that: (1) there exists a life-threatening situation involving the human subject of such testing which necessitates the use of such device; (2) it is not feasible to obtain informed consent from the subject; and (3) there is not sufficient time to obtain such consent from his representative. Further, a licensed physician uninvolved in the testing must agree with this three-part determination in advance of using the product unless immediate use of the device is required to save the life of the human subject of such testing and there is not sufficient time to obtain such concurrence. The statute states that the exceptions to requiring informed consent are subject to such conditions as the Secretary may prescribe. This proposed rule is not required by statute or court order.

Alternatives: The only other option open to the agency is to do nothing. FDA believes that this option is not acceptable because it could result in improper treatment or no treatment for persons with serious illnesses because the health professionals could not use these investigational products in absence of informed consent.

Anticipated Costs and Benefits: The minimal burdens imposed by this rule are offset by the fact that, in the absence of this rule, the sponsor would be required to obtain informed consent, which is just as burdensome, if not more so. The rule would permit use of investigational products without which patients' lives might be threatened. Because of uncertainty about the nature or extent of any chemical or biological terrorism event, FDA cannot estimate the extent of the benefits of this rule.

Risks: The primary risk addressed by this rule is the risk that patients may go untreated or may be improperly treated because health professionals could not use an investigational product in the absence of informed consent. FDA cannot determine the extent of this risk without knowing the nature or extent of any chemical or biological terrorism event.