24 May Borderline products
In May the MDCG Guideline 2022 – 5 “Guidance on Borderline between medical devices and medicinal products under MDR 2017/745” was published, at the conclusion of a long comparison within the Community.
Borderline products are those products that by their nature are not immediately traceable to a particular sector, for which it is therefore difficult to define what is the reference legislation to be applied.
The demarcation between Regulation (EU) 2017/745 on medical devices (MDR) on the one hand and Directive 2001/83/EC on medicinal products (MPD) for human use on the other is crucial for the implementation of these legislative acts and for their correct interpretation and application.
As a general rule, a product is regulated either by the MDR or by the MPD but not both. The conformity assessment procedure or the marketing authorisation procedure to be followed prior to placing a given product on the market will therefore be governed either by the MDR or by the MPD. The procedures of both regulatory regimes do not apply cumulatively. However, for products that have properties of both medicinal products and medical devices (e.g. medical devices incorporating as an integral part, a substance which, if used separately, would be considered to be a medicinal product), some cross-references are made within one regime to specific provisions of the other regime.
The wording of Article 2(2) of the MPD shows that it only applies if, after a case-by-case assessment, taking in consideration all the characteristics of a product, the product in question may fall within the definition of both, medical device and medicinal product. In such a case, the provisions of the MPD applies5. The MDR and the MPD may not be applied cumulatively.
The aim of this guideline is to support the uniform application of the Regulation throughout the European Union.
The document starts with the general discussion of the borderline between medical devices and medicinal products, including relevant definitions and examples. Separate chapters are dedicated to herbal products, substance-based devices and medical device and medicinal product combinations.
According to Article 1(6)(b) of the MDR, in deciding whether a product falls under the MDR or the MPD particular account shall be taken of the principal mode of action of the product. The nature of the principal mode of action i.e. whether it is pharmacological, immunological or metabolic or other is generally the same irrespective of the quantity.
According to Article 2(1) MDR a medical device does not achieve its principal intended action by pharmacological, immunological or metabolic means, in or on the human body, but may be assisted in its function by such means. The concept that a medical device may be assisted in achieving its principal intended action by pharmacological, immunological or metabolic means should be understood as covering those cases when the medical device incorporates, as an integral part, a substance which, if used separately, would be considered to be a medicinal product, and that has an action ancillary to that of the device.
Typically, the medical device’s principal intended action is achieved by physical means (including mechanical action, physical barrier such as a film, lubrication, heat transfer, radiation, ultrasound, replacement of or support to organs or body functions). Furthermore, hydration or dehydration and pH modification may also be means by which a medical device achieves its principal intended action.
The determination of the nature of the substance, i.e. whether it is “considered to be a medicinal product” is independent of the intention of the manufacturer, of the quantity of the substance in the device and of the method or route of administration.
The document may be revised in the light of the update of technical-scientific knowledge and in the light of the results of discussions within the Borderline and Classification medical devices expert group (B&C) of the Medical Device Coordination Group.