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MDR Article 120 – Transitional Provisions

On 26 May 2021, the Medical Device Regulation (EU) 2017/745 (MDR) began to apply following a 4-year transition period from the previous Active Implantable Medical Device Directive 90/385/EEC (AIMDD) and Medical Device Directive 93/42/EEC (MDD).

The ‘Transitional Provisions’ within Article 120 of the MDR govern this switch and lay out specific derogations from the Regulation which has had a great impact on how and when medical device manufacturers transition. In fact, many manufacturers have been able to benefit from these derogations, allowing them more time to meet the requirements of the MDR.

Paragraph 2 of Article 120 focusses on the validity of certificates issued in accordance with the MDD and AIMDD prior to 25 May 2017. Certificates which have been issued before this data will remain valid until the end of their validity period, with the exception of those certificates issued in accordance with Annex 4 of the AIMDD or Annex IV of the MDD, which become void 27 May 2022. Furthermore, the validity date for AIMDD and MDD certificates issued after 25 May 2017 shall not exceed 27 May 2024. The Notified Body who has issued the AIMDD or MDD certificate will continue to be responsible for the surveillance relating to those medical devices.

 

Article 120 paragraph 3 lays out the key derogations to MDR, it states:

By way of derogation from Article 5 of this Regulation, a device which is a class I device pursuant to Directive 93/42/EEC, for which the declaration of conformity was drawn up prior to 26 May [2021] and for which the conformity assessment procedure pursuant to this Regulation requires the involvement of a notified body, or which has a certificate that was issued in accordance with Directive 90/385/EEC or Directive 93/42/EEC and that is valid by virtue of paragraph 2 of this Article, may be placed on the market or put into service until 26 May 2024, provided that from 26 May [2021] it continues to comply with either of those Directives, and provided there are no significant changes in the design and intended purpose. However, the requirements of this Regulation relating to post-market surveillance, market surveillance, vigilance, registration of economic operators and of devices shall apply in place of the corresponding requirements in those Directives.

 

There are several implications of this paragraph which shall be broken down below.

If a device which has been classified as class I under the MDD will now require Notified Body intervention under the new classification rules of the MDR (annex VIII), the manufacturer shall have until 26 May 2024 to meet the new requirements, provided that its MDD Declaration of Conformity was drawn up prior to 26 May 2021. Reusable surgical instruments and software are typical examples of devices which have been classified as class I under the MDD and which will now require the involvement of a Notified Body and which may benefit from the extended transitional period introduced by Article 120(3). The definition of a reusable surgical instrument is provided in Annex VIII Chapter I Section 2.3.

However, as with most good things, certain terms and conditions will apply:

  1. The device must continue to comply with the Directives from 26 May 2021.
  2. There can be no significant changes to the device design or intended purpose from 26 May 2021.
  3. The MDR requirements within the following sections shall apply from 26 May 2021:
    1. Post-Market Surveillance [Article 83-86, 92, Annex III].
    2. Market Surveillance [Article 93-100].
    3. Vigilance [Article 87-92].
    4. Registration of economic operators and devices [Article 31 and 29].

What constitutes a significant change? The EU’s Medical Device Coordination Group (MDCG) released guidance document ‘MDCG 2020-3’ which explains in some detail what is considered to be a significant change in relation to Article 120(3). The MDCG guidance provides a series of flowcharts which may be followed to determine whether the change to design or intended purpose would be considered significant or not. Such changes should always be discussed on a case-by-case basis with the relevant Notified Body, however, the following changes would not be deemed significant:

  • Reductions or limitations of the intended purpose.
  • Design changes related to corrective actions assessed and accepted by the Competent Authority.

MDCG 2020-3

 

As a result of Article 120(3), medical devices classified as class I under the EU MDD and which will be classified as class I under the EU MDR and which are not covered by a valid CE certificate (e.g. sterile or measuring class I devices) will need to meet the requirements and obligations of the MDR from 26 May 2021. This implies that ‘simple’ class I device manufacturers will not be able to place their MDD-compliant medical devices on the EU market until they have satisfied the requirements of the MDR.

 

For manufacturers who are benefitting from the extended transition period introduced by Article 120(3), you will still need to comply with certain sections of the MDR, as specified above. The following technical documentation updates will be required as a minimum:

  • Updating the Post-Market Surveillance (PMS) Plan in accordance with Annex III.
  • Developing a PMS Report or a Periodic Safety Update Report (PSUR).
  • Updating existing procedures on vigilance to meet the requirements in Chapter VII Section 2. Of note is that ‘other’ adverse events shall be reported within 15 days rather than 30 days under the previous Directives.

These changes must be implemented within the technical documentation and QMS from 26 May 2021.

 

Article 120(3) also implies that all manufacturers placing medical devices on the EU market for the first time, will need to immediately meet the requirements and obligations as laid out in the EU MDR for their medical device.

 

How can Advena help you?

Advena has over 20 years of professional experience within the medical device industry as both a leading EU Authorised Representative and regulatory consultants. We are able to guide you through the complexities of EU regulation and help you place compliant devices on the market:

  • Regulation Gap Analysis for Directive-compliant technical documentation and QMS.
  • Regulation-compliant technical documentation.
  • Regulation-compliant QMS.
  • EU Authorised Representative service under the EU Regulations.

UKCA: UK’s Proposed ‘CE Mark’ Replacement

In February 2019, the MHRA published guidance on the use of the ‘UKCA’ (UK Conformity Assessed) mark in the event of a ‘No-Deal’ Brexit. The guidance stated that the UKCA mark would not be recognised on the EU market and manufacturers would still be required to obtain CE marking for products to be placed on the EU market and that the UKCA mark will need to be applied in the following situation(s);

  • The product is for the UK market.
  • The product requires mandatory third-party conformity assessment.
  • The conformity assessment for the product has been carried out by a UK conformity assessment body (a UK-based notified body or recognised third-party organisations).

The guidance also stipulates that “in the majority of cases you will still be able to use the CE marking if you are selling goods on the UK market after the UK leaves the EU. The CE marking will only be accepted in the UK for a limited time after Brexit”, however, this guidance was withdrawn on 30th January 2020.

With the deadline for the end of the 1-year transition period fast approaching, it is still unclear whether the UK government intends to put these measures in place. As a result, manufacturers are urging the UK government to provide more details and guidance on these plans to ensure they have adequate time to prepare to affix the UKCA mark on their products.

It is understood that the UK government is not likely to announce details of the new UKCA mark until a mutual decision has been made as part of the ongoing UK-EU trade negotiations. Understandably, concerns are growing as to the relatively short time left to put any new UK requirements in place to ensure compliance before the end of the year, although we have been made aware from a reliable source that the MHRA is currently reviewing the Medical Devices (Amendment etc.) (EU Exit) Regulations 2019.

We will keep you posted with any updates as soon as we receive them.

Intended Use VS Indications For Use

Over the years, the amount of regulatory terminology seems to grow at a constant rate, and so it is no surprise that even the more fundamental terms start getting confused. We have seen many cases in which “Intended Use” and “Indications for Use” have been used interchangeably. Sometimes, “Indications for Use” are not even considered! So why does it matter?

The “intended use” of a device is critical for determining its classification, and is usually defined during the initial regulatory stages. However, the “intended use” is often misunderstood. Its purpose is not to describe what the device is intended to be used for. Instead, it should lay out the claims of what your device is meant to do. This is precisely why the classification will be based on the intended use, that is, on the manufacturer’s claims. It is good practice to keep the intended use statement concise, as long as it details all the fundamental claims appropriately.

On the other hand, the “indications for use” will lay out the conditions in which the user would use the device, that is, the reason or situation for use.

If you have any further questions, please let us know!

Medical Device Regulation: Technical File Requirements

There is a concern that many manufacturers who CE mark class I medical devices do not have adequate technical (safety) data to provide in the event of a European complaint, regulatory or vigilance enquiry. The fact that class I devices are “self-certified” does not absolve the manufacturer from having sufficient technical and safety data to support their marketing activities in the EU.

In addition, as from mid-year (probably May / June), anyone who exports medical devices into the EU may have to assure that their importer, and authorised representative (such as ourselves), has suitable access to the company technical documentation to demonstrate conformity to the regulations. So, in that respect, importers and authorised representatives could be asked to show how they can gain access to device technical files in a timely manner. To not be able to do this could mean exposure to legal issues and, in particular product liability claims, as all economic operators could be held liable to assure device conformity.

We strongly urge these processes to be considered as soon as possible before the new EU regulations are upon you;

  1. Assure you have up-to-date, signed and approved regulatory files that are reviewed for completeness. Such files should concentrate on safety (by risk management) and a demonstration of conformity to the EU “Essential Requirements” (Now called “General Safety and Performance Requirements” in the Regulations) by using a check list. All manufacturers selling in the EU must have a suitable “Declaration of Conformity”. If you are an Advena Ltd. Authorised Representative client you will know we insist on the latter before we will contract with you.
  2. Assure that your importers (that is the businesses who first bring your devices into the EU – you may have several) understand their responsibilities for being able to access your technical data.

NOTE:    Having access to technical files does not mean the economic operator having the information physically on file in their premises, although this may be the way you want to work.  As most technical file documents are live, and subject to continual improvement and update, this information could be on a cloud server with permission to be being given in the event of a regulatory enquiry. However, Authorised Representatives must be able to show they have verified that the text is available and complete.

Any Non-EU medical devices manufacturers seeking an EU Authorised Representative (EC REP) should contact Advena Limited by email: info@advenmedical.com to request detailed information about our services and a quotation.

Advena Ltd will be represented at ExpoMedical 2016 in Argentina

logoexpoThanks to our new trusted partners in Argentina we are being represented at ExpoMedical medical device trade show in Argentina. This show is at the Centro Costa Salguero; Av. Costanera R. Obligado y J. Salguero Buenos Aires Argentina and runs from the 28th to 30th September.

Advena Ltd will be represented at Booth # 5 – A19 of MMG Consulting SRL Medical Devices / Regulatory Affairs, contact magdalena.delsel@mmgc.com.ar https://www.mmgc.com.ar

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