As the COVID-19 outbreak expands, supply chains have been stressed for general use face masks, surgical masks, and similar disposable devices for filtering airborne particulates, as well as medical face shields. To help expand the availability of general use face masks for the general public, and of filtering facepiece respirators (“FFRs”) like N95 respirators for healthcare professionals, the U.S. Food and Drug Administration (“FDA”) has recently issued several guidance documents easing restrictions on the distribution, use, and importation of such devices.

Regulation of Filtration Masks Generally

Any device intended to prevent disease is subject to regulation as a “medical device” by the FDA. Manufacturers of face masks intended to prevent disease must typically comply with the requirements of the Federal Food, Drug, and Cosmetic Act, such as registration and listing of devices sold (21 C.F.R. Part 807); adequate labeling of devices (21 C.F.R. Part 801), including Unique Device Identification requirements (21 C.F.R. § 801.20, 21 C.F.R. Part 830); reporting of device-related adverse events (21 C.F.R. Part 803); good manufacturing practices required by the Quality System Regulation (21 C.F.R. Part 820); reporting of corrections and removals (21 C.F.R. Part 806); and other controls. For example, FFRs for use by the general public to reduce exposure to airborne pathogens must typically be certified as N95 respirators by the National Institute for Occupational Safety and Health (“NIOSH”) (21 C.F.R. § 880.6260), and surgical masks and many N95 respirators are typically subject to Section 510(k) premarket notification requirements (21 C.F.R. § 878.4040).

Current FDA Enforcement Policy

In May 2020, the FDA issued a guidance document titled “Enforcement Policy for Face Masks and Respirators During the Coronavirus Disease (COVID-19) Public Health Emergency (Revised),” superseding prior guidance documents issued in March and April 2020. In its updated guidance, the FDA clarifies several aspects of its intended approach, for the duration of the public health emergency, to regulation of these products.

Non-medical devices. The FDA explains that face masks, face shields, and FFRs not intended for any medical purpose, such as the prevention of disease, are not subject to FDA regulation as medical devices. The FDA states that when evaluating whether such products are intended for a medical purpose, it will consider whether (1) they are labeled or otherwise intended for use by a healthcare professional; (2) they are labeled or otherwise intended for use in a healthcare facility or environment; and (3) they include any drugs, biologics, or antimicrobial/antiviral agents. This suggests that for the duration of the COVID-19 emergency, the FDA potentially may not, in its discretion, consider a face mask or respirator to be a regulated “medical device” simply because it is used to reduce exposure to germs by the general public.

Regulation of face shields and face masks other than respirators. The FDA also states that for the duration of the public health emergency, it does not intend to object to the distribution and use of certain classes of devices without compliance with certain listed regulatory requirements, so long as the product does not create an undue risk in light of the public health emergency. The FDA’s guidance on particular categories of products is set forth in the table below. Certain of these non-binding enforcement guidelines have also been formalized in binding Emergency Use Authorizations (“EUAs”), as discussed further below.

* In this document, the FDA defines a “face mask” as “a mask … that covers the user’s nose and mouth and may or may not meet fluid barrier or filtration efficiency levels,” as distinguished from FFRs such as N95 respirators.

“N95”-type respirators approved under standards used in other countries. In its prior April 2020 guidance document, the FDA had stated that when FDA-cleared or NIOSH-approved N95 respirators are not available, it would relax enforcement standards for certain respirators approved under standards used in other countries, which had been identified by the Centers for Disease Control (“CDC”) as comparable alternatives. In its updated guidance, in light of concerns regarding the performance of certain such respirators, the FDA states that it is discontinuing this policy. The FDA currently does not recommend using any product as a respirator unless it has been FDA-cleared, NIOSH-approved, or authorized by the FDA for emergency use as a respirator (see EUAs below).

However, the FDA also advises that certain N95 alternatives may be used as a face mask by the general public or healthcare personnel as source control when they meet the criteria of the FDA’s EUA for face masks, described below. (“Source control” refers to the use of a mask or cloth covering over an individual’s nose and mouth to contain that individual’s respiratory secretions, as opposed to use as personal protective equipment to reduce exposure from others.) A list of such alternatives is available on this CDC page under the heading “Use of respirators approved under standards used in other countries that are similar to NIOSH-approved respirators.” In that case, the FDA states that the product should be labeled accordingly and not be used as a respirator.

EUAs for face masks and respirators. The FDA stated its intent to continue working with manufacturers on device-specific EUAs in order to expedite authorization of these products and processes outside of normal regulatory channels. The FDA invited interested stakeholders to supply listed information to CDRH-COVID19-SurgicalMasks@fda.hhs.gov to facilitate expedited approval through an EUA. Many face masks and respirators are already subject to generally applicable EUAs, as discussed below.

Emergency Use Authorizations (EUAs) Relating to Face Masks, Face Shields, and Respirators

The FDA has issued numerous EUAs authorizing use of personal protective equipment (“PPE”) outside of normal regulatory channels, including updates to prior authorizations issued since the public health emergency was declared. While this article discusses only general EUAs for face masks, face shields, and respirators, the FDA’s full list of EUAs relating to PPE is available here.

While most of the EUAs discussed below apply only to use by healthcare personnel, distribution of the referenced products to the general public may still be subject to the current enforcement policies discussed above.

NIOSH-approved respirators. On March 28, 2020, the FDA issued an EUA authorizing the use, by healthcare personnel only, of nearly all NIOSH-approved FFRs, other non-powered respirators, and powered air purifying respirators. This includes devices approved for industrial rather than medical use, devices that have passed the manufacturers’ recommended shelf life, and devices that have been reprocessed through an authorized decontamination system. This EUA updates prior authorizations issued on March 2, 2020, and March 27, 2020. The EUA is available here, and includes details on authorized devices and conditions for authorization, such as labeling, advertising, reporting, and record retention requirements. 

Imported, non-NIOSH-approved FFRs. On June 6, 2020, the FDA updated its March 2020 EUA making eligible for authorization, for use by healthcare personnel to prevent wearer exposure, certain FFRs designed, evaluated, and validated under performance standards used in other countries. The current EUA includes FFRs approved under applicable standards in Australia, Brazil, Europe, Japan, Korea, and Mexico; FFRs with specified marketing authorizations in Europe; and FFRs manufactured by entities that hold one or more NIOSH approvals for FFRs as verified by FDA. The EUA is available here, and includes details on authorized devices and conditions for authorization, including a requirement that manufacturers and importers send certain information to the FDA before their products can be added to the list of authorized devices.

Also on June 6, 2020, the FDA updated its separate EUA making eligible for authorization, for use by healthcare personnel to prevent wearer exposure, FFRs manufactured in China, including FFRs with regulatory authorizations in China and other jurisdictions. As with FFRs authorized under the EUA for other imported FFRs, manufacturers and importers of such respirators must send certain information to the FDA before their products can be added to the list of authorized devices, as well as comply with other conditions of authorization. The EUA is available here.

Face shields. On April 13, 2020, the FDA issued an EUA authorizing the use by healthcare personnel of stand-alone face shields not including any other article of PPE (such as a mask) that meet certain labeling and materials requirements. Manufacturers of such products need not take any action for approval, other than compliance with the labeling, instructions, advertising, records retention, and reporting requirements specified in the EUA, which are comparable to the guidelines set forth in the FDA enforcement policy discussed above. This EUA updates a prior authorization issued on April 9, 2020, and is available here.

Non-filtering face masks. On April 18, 2020, the FDA issued an EUA authorizing the use by the general public (including healthcare personnel) of face masks not intended to provide any specific degree of particulate filtration, such as cloth face coverings, that meet certain labeling requirements. Manufacturers of such products need not take any action for approval, other than compliance with the labeling, instructions, advertising, records retention, and reporting requirements specified in the EUA, which are comparable to the guidelines set forth in the FDA enforcement policy discussed above. The EUA was revised on April 24, 2020, to clarify that such face masks are to be used for source control only, and not as a means for healthcare personnel to reduce exposure to airborne pathogens. The EUA is available here.