[Title 21 CFR 895]
[Code of Federal Regulations (annual edition) - April 1, 1999 Edition]
[Title 21 - FOOD AND DRUGS]
[Chapter I - FOOD AND DRUG ADMINISTRATION,]
[Subchapter H - MEDICAL DEVICES]
[Part 895 - BANNED DEVICES]
[From the U.S. Government Printing Office]


21FOOD AND DRUGS81999-04-011999-04-01falseBANNED DEVICES895PART 895FOOD AND DRUGSFOOD AND DRUG ADMINISTRATION,MEDICAL DEVICES
PART 895--BANNED DEVICES--Table of Contents




                      Subpart A--General Provisions

Sec.
895.1  Scope.
895.20  General.
895.21  Procedures for banning a device.
895.22  Submission of data and information by the manufacturer, 
          distributor, or importer.
895.25  Labeling.
895.30  Special effective date.

                  Subpart B--Listing of Banned Devices

895.101  Prosthetic hair fibers.

    Authority: 21 U.S.C. 352, 360f, 360h, 360i, 371.

    Source: 44 FR 29221, May 18, 1979, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 895.1  Scope.

    (a) This part describes the procedures by which the Commissioner may 
institute proceedings to make a device intended for human use that 
presents substantial deception or an unreasonable and substantial risk 
of illness or injury a banned device.
    (b) This part applies to any ``device'', as defined in section 
201(h) of the Federal Food, Drug, and Cosmetic Act (act) that is 
intended for human use.
    (c) A device that is made a banned device in accordance with this 
part is adulterated under section 501(g) of the act. A restricted device 
that is banned may also be misbranded under section 502(q) of the act.
    (d) Although this part does not cover devices intended for animal 
use, the manufacturer, distributor, importer, or any other person(s) 
responsible for the labeling of the device that is banned cannot avoid 
the ban by relabeling the device for veterinary use. A device that has 
been banned from human use but that also has a valid veterinary use may 
be marketed for use as a veterinary device only under the following 
conditions: The device shall comply with all requirements applicable to 
veterinary devices under the Federal Food, Drug, and Cosmetic Act and 
this chapter, and the label for the device shall bear the following 
statement: ``For Veterinary Use Only. Caution: Federal law prohibits the 
distribution of this device for human use.'' A device so labeled, 
however, that is determined by the Food and Drug Administration to be 
intended for human use, will be considered to be a banned device. In 
determining whether such a device is intended for human use, the Food 
and Drug Administration will consider, among other things, the ultimate 
destination of the device.



Sec. 895.20  General.

    The Commissioner may initiate a proceeding to make a device a banned 
device whenever the Commissioner finds, on the basis of all available 
data and information, that the device presents substantial deception or 
an unreasonable and substantial risk of illness or injury that the 
Commissioner determines cannot be, or has not been, corrected or 
eliminated by labeling or by a change in labeling, or by a change in 
advertising if the device is a restricted device.

[44 FR 29221, May 18, 1979, as amended at 57 FR 58405, Dec. 10, 1992]



Sec. 895.21  Procedures for banning a device.

    (a) Before initiating a proceeding to make a device a banned device, 
the Commissioner shall find that the continued marketing of the device 
presents a substantial deception or an unreasonable and substantial risk 
of illness or injury.
    (1) In determining whether the deception or risk of illness or 
injury is substantial, the Commissioner will consider whether the 
deception or risk posed by continued marketing of the device, or 
continued marketing of the device as presently labeled, is important, 
material, or significant in relation to the benefit to the public health 
from its continued marketing.
    (2) In determining whether a device is deceptive, the Commissioner 
will consider whether users of the device may be deceived or otherwise 
harmed by the device. The Commissioner is not required to determine that 
there was an intent on the part of the manufacturer, distributor, 
importer, or any other responsible person(s) to mislead or otherwise 
harm users of the device or that

[[Page 491]]

there exists any actual proof of deception of, or injury to, an 
individual.
    (3) In determining whether a device presents deception or risk of 
illness or injury, the Commissioner will consider all available data and 
information, including data and information that the Commissioner may 
obtain under other provisions of the act, data and information that may 
be supplied by the manufacturer, distributor, or importer of the device 
under Sec. 895.22, and data and information voluntarily submitted by any 
other interested persons.
    (b) Before initiating a proceeding to make a device a banned device, 
the Commissioner of Food and Drugs (the Commissioner) may consult with 
the panel established under section 513 of the act that has expertise 
with respect to the type of device under consideration. The consultation 
with the panel may occur at a regular or specially scheduled panel 
meeting or may be accomplished by correspondence or telephone 
conversation with panel members. The Commissioner may request that the 
panel submit in writing any advice on the device under consideration. 
The Commissioner will record in written memoranda any oral 
communications with a panel or its members.
    (c) If the Commissioner determines that any substantial deception or 
unreasonable and substantial risk of illness or injury or any 
unreasonable, direct, and substantial danger to the health of 
individuals presented by a device can be corrected or eliminated by 
labeling or change in labeling, or change in advertising if the device 
is a restricted device, the Commissioner will notify the responsible 
person of the required labeling or change in labeling or change in 
advertising in accordance with Sec. 895.25. If such required relabeling 
or change in advertising is not accomplished in accordance with 
Sec. 895.25, the Commissioner may initiate a proceeding to ban the 
device in accordance with Sec. 895.21(d) and, when appropriate, may 
establish a special effective date in accordance with Sec. 895.30.
    (d) If the Commissioner decides to initiate a proceeding to make a 
device a banned device, a notice of proposed rulemaking will be 
published in the Federal Register to this effect. The notice will 
briefly summarize--
    (1) The Commissioner's finding under paragraph (a) of this section 
that the device presents substantial deception or an unreasonable and 
substantial risk of illness or injury, and, when appropriate, the 
Commissioner's determination under Sec. 895.30 that the deception or 
risk of illness or injury presents an unreasonable, direct, and 
substantial danger to the health of individuals;
    (2) The reasons why the Commissioner initiated the proceeding;
    (3) The evaluation of data and information obtained under other 
provisions of the act, submitted by the manufacturer, distributer, or 
importer of the device, or voluntarily submitted by any other interested 
persons under paragraph (a)(3) of this section, if any;
    (4) The consultation with the panel, if any, under paragraph (b) of 
this section;
    (5) The determination as to whether the deception or risk of illness 
or injury or the danger to the health of individuals could be corrected 
by labeling or change in labeling, or change in advertising if the 
device is a restricted device;
    (6) The determination of whether the required labeling or change of 
labeling, or change in advertising if the device is a restricted device, 
if any, has been made in accordance with paragraph (c) of this section;
    (7) The determination as to whether, and the reasons why, the 
banning should apply to devices already in commercial distribution or 
those already sold to the ultimate user, or both; and
    (8) Any other data and information that the Commissioner believes 
are pertinent to the proceeding. The notice will afford all interested 
persons an opportunity to submit written comments within 30 days after 
the date of publication of the proposed regulation. All nonconfidential 
information upon which the proposed finding is based, including the 
recommendations of the panel, will be available for public review in the 
Dockets Management Branch, Food and Drug Administration.

The notice will afford all interested persons an opportunity to submit 
written comments and request an informal hearing, as defined in section 
201(y) of

[[Page 492]]

the act, before the Food and Drug Administration within 30 days after 
the date of publication of the proposed regulation. If a request for an 
informal hearing is granted, the hearing will be conducted as a 
regulatory hearing under the applicable provisions of part 16 of this 
chapter. All nonconfidential information upon which the proposed finding 
is based, including the recommendations of the panel, will be available 
for public review in the office of the Dockets Management Branch, Food 
and Drug Administration.
    (e)(1) If, after reviewing the administrative record of the 
regulatory hearing before the Food and Drug Administration, if any, the 
written comments received on the proposed regulation, and any additional 
available data and information, the Commissioner determines to ban a 
device, a final regulation to this effect will be published in the 
Federal Register. The final regulation will amend subpart B by adding 
the name or description of the device, or both, to the list of banned 
devices.
    (2) If the Commissioner determines not to ban the device, a notice 
of withdrawal and termination of rulemaking proceedings and reasons 
therefor will be published in the Federal Register.
    (f) The effective date of a final regulation to make a device a 
banned device, promulgated under paragraph (e) of this section, will be 
the date of publication of the final regulation in the Federal Register 
unless the Commissioner, for reasons stated, determines that the 
effective date should be later than the date of the publication and 
specifies that date in the notice. Each such regulation will specify 
whether devices already in commercial distribution or sold to the 
ultimate user or both are banned.
    (g) A regulation promulgated under paragraph (e) of this section is 
final agency action, subject to judicial review under section 517 of the 
act.
    (h) Upon petition of any interested person submitted in accordance 
with Sec. 10.30 of this chapter, or as a matter of discretion, the 
Commissioner may institute proceedings to amend or revoke a regulation 
that made a device a banned device if the Commissioner finds that the 
conditions that constituted the basis for the regulation banning the 
device are no longer applicable. When appropriate, the procedures in 
this section will be employed in such proceedings.

[44 FR 29221, May 18, 1979, as amended at 53 FR 11254, Apr. 6, 1988; 57 
FR 58405, Dec. 10, 1992]



Sec. 895.22  Submission of data and information by the manufacturer, distributor, or importer.

    (a) A manufacturer, distributor, or importer of a device may be 
required to submit to the Food and Drug Administration all relevant and 
available data and information to enable the Commissioner to determine 
whether the device presents substantial deception, unreasonable and 
substantial risk of illness or injury, or unreasonable, direct, and 
substantial danger to the health of individuals. The data and 
information required by the Commissioner may include scientific or test 
data, reports, records, or other information, including data and 
information on whether the device is safe and effective for its intended 
use or when used as directed, whether the device performs according to 
the claims made for the device, and information on adulteration or 
misbranding. Any relevant information that is voluntarily submitted will 
also be reviewed.
    (b) A manufacturer, distributor, or importer of a device required to 
submit data and information as provided in paragraph (a) of this section 
will be notified in writing by the Food and Drug Administration that 
such data and information shall be submitted. The written notification 
will advise the manufacturer, distributor, or importer of the device 
that the purpose for the request is to enable the Commissioner to 
determine whether any of the conditions listed in paragraph (a) of this 
section or Sec. 895.30(a)(1) exists with respect to the device such that 
a proceeding should be initiated to make the device a banned device. 
When the required data and information can be identified by the Food and 
Drug Administration at the time of the notification, the agency will 
provide such identification to the manufacturer, distributor, or 
importer of the device.
    (c) The required data and information shall be submitted to the Food 
and

[[Page 493]]

Drug Administration no more than 30 days after the date of receipt of 
the request, unless the Commissioner determines that the data and 
information shall be submitted by some other date and so informs the 
manufacturer, distributor, or importer, in which case the data and 
information shall be submitted on the date specified by the 
Commissioner.
    (d) If the data or information submitted to the Food and Drug 
Administration is sufficient to persuade the Commissioner that the 
deception or risk of illness or injury or the danger to the health of 
individuals presented by a device could be corrected or eliminated by 
labeling or change in labeling, or change in advertising if the device 
is a restricted device, the Commissioner will proceed in accordance with 
Sec. 895.25.
    (e) If the data or information submitted to the Food and Drug 
Administration is insufficient to show that the device does not present 
a substantial deception or an unreasonable and substantial risk of 
illness or injury, or an unreasonable, direct, and substantial danger to 
the health of individuals, or if the manufacturer, distributor, or 
importer fails to submit the required information, the Commissioner may 
rely upon this insufficiency or failure to submit the required 
information in considering whether to initiate a proceeding to make the 
device a banned device under Sec. 895.21(d) and, when appropriate, to 
establish a special effective date in accordance with Sec. 895.30. The 
Commissioner may also initiate other regulatory action as provided in 
the act or this chapter.



Sec. 895.25  Labeling.

    (a) If the Commissioner determines that the substantial deception or 
unreasonable and substantial risk of illness or injury or the 
unreasonable, direct, and substantial danger to the health of 
individuals presented by a device can be corrected or eliminated by 
labeling or a change in labeling, or change in advertising if the device 
is a restricted device, the Commissioner will provide written notice to 
the manufacturer, distributor, importer, or any other person(s) 
responsible for the labeling or advertising of the device specifying:
    (1) The deception or risk of illness or injury or the danger to the 
health of individuals,
    (2) The labeling or change in labeling, or change in advertising if 
the device is a restricted device, necessary to correct the deception or 
eliminate or reduce such risk or danger, and
    (3) The period of time within which the labeling, change in 
labeling, or change in advertising must be accomplished.
    (b) In specifying the labeling or change in labeling or change in 
advertising to correct the deception or to eliminate or reduce the risk 
of illness or injury or the danger to the health of individuals, the 
Commissioner may require the manufacturer, distributor, importer, or any 
other person(s) responsible for the labeling or advertising of the 
device to include in labeling for the device, and in advertising if the 
device is a restricted device, a statement, notice, or warning. Such 
statement, notice, or warning shall be in the manner and form prescribed 
by the Commissioner and shall identify the deception or risk of illness 
or injury or the unreasonable, direct, and substantial danger to the 
health of individuals associated with the device as previously labeled. 
Such statement, notice, or warning shall be used in the labeling and 
advertising of the device for a time period specified by the 
Commissioner on the basis of the degree of deception, risk of illness or 
injury, or danger to health; the frequency of sale of the device; the 
length of time the device has been on the market; the intended uses of 
the device; the method of its use; and any other factors that the 
Commissioner considers pertinent.
    (c) The Commissioner will allow a manufacturer, distributor, 
importer, or any other person(s) responsible for the labeling or 
advertising of the device a reasonable time, considering the deception 
or risk of illness or injury or the danger to the health of individuals 
presented by the device, within which to accomplish the required 
labeling, change in labeling, and, if the device is a restricted device, 
any change in advertising. The Commissioner may, however, request that 
no additional devices be introduced into commerce

[[Page 494]]

until the labeling or change in labeling, or change in advertising is 
accomplished by the manufacturer, distributor, importer, or other 
person(s) responsible for the labeling or advertising of the device.
    (d) If such voluntary action is not taken, the Commissioner may take 
action under other sections of the act to prevent the introduction of 
the devices into commerce. The Commissioner may consider the failure of 
a manufacturer, distributor, importer, or any other person(s) 
responsible for the labeling or advertising of the device to accomplish 
the required labeling or change in labeling, or change in advertising in 
accordance with this section as a basis for initiating a proceeding to 
make a device a banned device in accordance with Sec. 895.21(d) and when 
appropriate to establish a special effective date in accordance with 
Sec. 895.30.



Sec. 895.30  Special effective date.

    (a) The Commissioner may declare a proposed regulation under 
Sec. 895.21(d) to be effective upon its publication in the Federal 
Register and until the effective date of any final action taken 
respecting the regulation if:
    (1) The Commissioner determines, on the basis of all available data 
and information, that the deception or risk of illness or injury 
associated with use of the device that is subject to the regulation 
presents an unreasonable, direct, and substantial danger to the health 
of individuals, and
    (2) Before the date of the publication of such regulation, the 
Commissioner notifies the domestic manufacturer and importer, if any, of 
the device that the regulation is to be made so effective. If necessary, 
the Commissioner may also notify the distributor or any other 
responsible person(s). In addition, the Commissioner will attempt to 
notify any foreign manufacturer when the name and address of the foreign 
manufacturer are readily available.
    (b) This procedure may be used when the Commissioner determines that 
the potential or actual injury involved is a serious one that the 
Commissioner believes will endanger the health of individuals who have 
been, or will be, exposed to the device. In assessing the degree of 
danger, the Commissioner need not find that the danger is immediate, and 
it shall be sufficient for the Commissioner to determine that the danger 
may involve a serious long-term risk.
    (c) If the Commissioner makes a proposed regulation effective in 
accordance with this section, the Commissioner will, as expeditiously as 
possible, give interested persons prompt notice of this action in the 
Federal Register.
    (d) After the hearing, if any, and after considering any written 
comments submitted on the proposal and any additional available 
information and data, the Commissioner will as expeditiously as possible 
either affirm, modify, or revoke the proposed regulation making the 
device a banned device. If the Commissioner decides to affirm or modify 
the proposed regulation to make a device a banned device, the 
Commissioner will amend subpart B by adding the name or description of 
the device, or both, to the list of banned devices. If the Commissioner 
decides to revoke a proposed regulation making a device a banned device, 
a notice of termination of rulemaking proceedings and reasons therefor 
will be published in the Federal Register.
    (e) The Commissioner may declare the special effective date provided 
by this section to be in effect after the publication of a proposed 
regulation under Sec. 895.21(d), if, based on new information, or upon 
reconsideration of previously available information, the Commissioner 
makes the determination and provides the appropriate notices and an 
opportunity for a hearing in accordance with paragraphs (a) and (c) of 
this section.
    (f) Those devices that have been named banned devices under 
Sec. 895.30 and that have already been sold to the public may be subject 
to relabeling by the manufacturer, distributor, importer, or any other 
person(s) responsible for the labeling of the device or may be subject 
to the provisions of section 518(a) or (b) of the act.

[44 FR 29221, May 18, 1979, as amended at 57 FR 58405, Dec. 10, 1992]

[[Page 495]]



                  Subpart B--Listing of Banned Devices



Sec. 895.101  Prosthetic hair fibers.

    Prosthetic hair fibers are devices intended for implantation into 
the human scalp to simulate natural hair or conceal baldness. Prosthetic 
hair fibers may consist of various materials; for example, synthetic 
fibers, such as modacrylic, polyacrylic, and polyester; and natural 
fibers, such as processed human hair. Excluded from the banned device 
are natural hair transplants, in which a person's hair and its 
surrounding tissue are surgically removed from one location on the 
person's scalp and then grafted onto another area of the person's scalp.

[48 FR 25136, June 3, 1983]