U.S. Code » Title 21 » Chapter CHAPTER 21— BIOMATERIALS ACCESS ASSURANCE

21 U.S.C. § 1601

Findings

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The Congress finds that—(1) each year millions of citizens of the United States depend on the availability of lifesaving or life-enhancing medical devices, many of which are permanently implantable within the human body;(2) a continued supply of raw materials and component parts is necessary for the invention, development, improvement, and maintenance of the supply of the devices;(3) most of the medical devices are made with raw materials and component parts that—(A) move in interstate commerce;(B) are not designed or manufactured specifically for use in medical devices; and(C) come in contact with internal human tissue;(4) the raw materials and component parts also are used in a variety of nonmedical products;(5) because small quantities of the raw materials and component parts are used for medical devices, sales of raw materials and component parts for medical devices constitute an extremely small portion of the overall market for the raw materials and component parts;(6) under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) manufacturers of medical devices are required to demonstrate that the medical devices are safe and effective, including demonstrating that the products are properly designed and have adequate warnings or instructions;(7) notwithstanding the fact that raw materials and component parts suppliers do not design, produce, or test a final medical device, the suppliers have been the subject of actions alleging inadequate—(A) design and testing of medical devices manufactured with materials or parts supplied by the suppliers; or(B) warnings related to the use of such medical devices;(8) even though suppliers of raw materials and component parts have very rarely been held liable in such actions, such suppliers have ceased supplying certain raw materials and component parts for use in medical devices for a number of reasons, including concerns about the costs of such litigation;(9) unless alternate sources of supply can be found, the unavailability of raw materials and component parts for medical devices will lead to unavailability of lifesaving and life-enhancing medical devices;(10) because other suppliers of the raw materials and component parts in foreign nations are refusing to sell raw materials or component parts for use in manufacturing certain medical devices in the United States, the prospects for development of new sources of supply for the full range of threatened raw materials and component parts for medical devices are remote;(11) it is unlikely that the small market for such raw materials and component parts in the United States could support the large investment needed to develop new suppliers of such raw materials and component parts;(12) attempts to develop such new suppliers would raise the cost of medical devices;(13) courts that have considered the duties of the suppliers of the raw materials and component parts have generally found that the suppliers do not have a duty—(A) to evaluate the safety and efficacy of the use of a raw material or component part in a medical device; or(B) to warn consumers concerning the safety and effectiveness of a medical device;(14) because medical devices and the raw materials and component parts used in their manufacture move in interstate commerce, a shortage of such raw materials and component parts affects interstate commerce;(15) in order to safeguard the availability of a wide variety of lifesaving and life-enhancing medical devices, immediate action is needed—(A) to clarify the permissible bases of liability for suppliers of raw materials and component parts for medical devices; and(B) to provide expeditious procedures to dispose of unwarranted suits against the suppliers in such manner as to minimize litigation costs;(16) the several States and their courts are the primary architects and regulators of our tort system; Congress, however, must, in certain circumstances involving the national interest, address tort issues, and a threatened shortage of raw materials and component parts for lifesaving medical devices is one such circumstance; and(17) the protections set forth in this chapter are needed to assure the continued supply of materials for lifesaving medical devices, although such protections do not protect negligent suppliers.(Pub. L. 105–230, § 2, Aug. 13, 1998, 112 Stat. 1519.)Editorial NotesReferences in Text

The Federal Food, Drug, and Cosmetic Act, referred to in par. (6), is act June 25, 1938, ch. 675, 52 Stat. 1040, which is classified generally to chapter 9 (§ 301 et seq.) of this title. For complete classification of this Act to the Code, see section 301 of this title and Tables.

Statutory Notes and Related SubsidiariesEffective Date

Pub. L. 105–230, § 8, Aug. 13, 1998, 112 Stat. 1529, provided that: “This Act [enacting this chapter] shall apply to all civil actions covered under this Act that are commenced on or after the date of enactment of this Act [Aug. 13, 1998], including any such action with respect to which the harm asserted in the action or the conduct that caused the harm occurred before the date of enactment of this Act.”

Short Title

Pub. L. 105–230, § 1, Aug. 13, 1998, 112 Stat. 1519, provided that: “This Act [enacting this chapter] may be cited as the ‘Biomaterials Access Assurance Act of 1998’.”

Notes of Decisions
Cited in 11 cases (1 in the last 5 years), 2018–2021 · leading case: Jeffrey Connell v. Lima Corp., 988 F.3d 1089 (9th Cir. 2021).
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Jeffrey Connell v. Lima Corp., 988 F.3d 1089 (9th Cir. 2021). · cites it 6× “NELSON, Circuit Judge: We are presented with a question of first impression: who qualifies as a biomaterials supplier under the Biomaterials Access Assurance Act (“BAAA”), 21 U.S.C. § 1601 et seq. We conclude, in light of the statutory text, context, and stated purpose, that…”
Hammons, P. v. Ethicon, Inc., 190 A.3d 1248 (Pa. Super. Ct. 2018). “Secant also filed preliminary objections seeking dismissal of the claims under the Biomedical Access Assurance Act, 21 U.S.C. § 1601 et seq. On August 22, 2014, the trial court sustained Secant's preliminary objections and dismissed all claims against Secant with prejudice.”
Daley v. Smith & Nephew Inc., 321 F. Supp. 3d 891 (E.D. Wis. 2018). · cites it 3× “DiSanto argues that, as a mere supplier of a component part used in the M-COR, the claims against it are preempted and barred by the Biomaterials Access Assurance Act ("BAAA"), 21 U.S.C. § 1601 et seq. , which insulates biomaterials suppliers from liability in medical device…”
Rogers v. Ethicon, Inc., No. 2:19-cv-05461 (E.D. Pa. Dec. 23, 2019). · cites it 2× “32 Congressional findings on the purpose of the Act is codified at 21 U.S.C. § 1601 . 33. 21 U.S.C. § 1601 (7).”
Monroe v. Ethicon, Inc., No. 2:19-cv-05384, 2019 WL 7050130 (E.D. Pa. Dec. 23, 2019). · cites it 2× “32 Congressional findings on the purpose of the Act is codified at 21 U.S.C. § 1601 . 33. 21 U.S.C. § 1601 (7).”
Stewart v. Ethicon, Inc., No. 2:19-cv-04776, 2020 U.S. Dist. LEXIS 50271 (E.D. Pa. Mar. 19, 2020). · cites it 2× “See 21 U.S.C. § 1601 et seq. The Court of Common Pleas granted Secant’s motion to dismiss and ordered Plaintiff to file an amended complaint “that does not name any Secant entity as a defendant.”
Newman v. Ethicon, Inc., No. 2:19-cv-04496, 2019 WL 6251194 (E.D. Pa. Nov. 21, 2019). “’ 21 U.S.C. § 1601 (15)(B). One such procedure is a motion to dismiss, which a biomaterials supplier may file under 21 U.”
Cavanaugh v. Ethicon, Inc., No. 2:19-cv-02014, 2019 WL 6883752 (E.D. Pa. Dec. 16, 2019). “” 21 U.S.C. § 1601 (15)(B). As noted above, one such procedure is a motion to dismiss, which a biomaterials supplier may file under 21 U.”
Markham v. Ethicon, Inc, No. 2:19-cv-05464, 2020 WL 372147 (E.D. Pa. Jan. 22, 2020). “While the case was still in state court, Secant was quickly dismissed from the case by filing a special motion to dismiss under the Biomedical Access Assurance Act (BAAA), 21 U.S.C. § 1601 et seq., which expressly preempts most state-law claims against “biomaterials…”
Quinn v. Ethicon, Inc., No. 2:19-cv-05462, 2020 WL 977326 (E.D. Pa. Feb. 27, 2020). “and Secant Medical LLC (collectively “Secant”), from In re Pelvic Mesh Litigation with prejudice pursuant to the Biomaterials Access Assurance Act (“BAAA”), 21 U.S.C. § 1601 et seq., which immunizes biomaterials suppliers.”
Curran v. Ethicon, Inc., No. 2:19-cv-05755 (E.D. Pa. Mar. 16, 2020). “Secant argued that, as a biomaterials supplier, it was immune from liability under the Biomaterials Access Assurance Act, 21 U.S.C. §§ 1601–06 (2012). After briefing and oral argument, Judge New agreed and dismissed all claims against Secant with prejudice.”
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