A. No person shall sell, deliver, offer for sale, hold for sale or give away any new drug or device unless:

(1) an application has been approved for the drug and approval has not been withdrawn under Section 505 of the federal act;

(2) when the drug is not subject to the federal act, the drug has been tested and has been found to be safe for use under the conditions prescribed, recommended or suggested in the labeling, and, prior to selling or offering for sale, there has been filed with the board an application setting forth full reports of investigations which have been made to show whether or not the drug is safe for use; a full list of the articles used as components of the drug; a full statement of the composition of the drug; a full description of the methods used in and the facilities and controls used for the manufacture, processing and packing of the drug; such samples of the drug and of the articles used as components of the drug as the board may require; and specimens of the labeling proposed to be used for the drug; or

(3) the device has met the requirements of classification, performance standards and premarket approval, where applicable, under Sections 513 through 520 of the federal act.

B. An application provided for in Paragraph (2) of Subsection A of this section shall become effective on the one hundred eightieth day after filing except that if the board finds, after due notice to the applicant and giving him an opportunity for a hearing, that the drug is not safe for the use under the conditions prescribed, recommended or suggested in the proposed labeling, it shall, prior to the effective date of application, issue an order refusing to permit the application to become effective.

C. An order refusing to permit an application under this section to become effective may be revoked by the board.

D. This section shall not apply:

(1) to a drug intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety of drugs, provided the drug is plainly labeled in compliance with the regulations issued by the board or pursuant to Section 505(i) or 507(d) of the federal act;

(2) to any drug which is subject to Subsection I of Section 26-1-11 NMSA 1978;

(3) to any device for use pursuant to the order of an individual practitioner qualified by law in this state to use or prescribe the device, which device:

(a) is not generally available in finished form for purchase or for dispensing upon prescription and is not offered through labeling or advertising by the manufacturer for commercial distribution;

(b) is intended for use by an individual patient named in the order of the prescribing practitioner and is to be made in a specific form for the patient or is intended to meet the special needs of the practitioner in the course of the practitioner's professional practice; and

(c) is not generally available to or generally used by other practitioners; or

(4) is exempt under Section 520(g) of the federal act for investigational use by experts qualified by scientific training and experience to test the safety and effectiveness of the device by controlled investigation and evaluation.

History: 1953 Comp., § 54-6-39, enacted by Laws 1967, ch. 23, § 14; 1977, ch. 117, § 2; 1987, ch. 270, § 5.

Cross references. — For definition of "new drug", see 26-1-2 NMSA 1978.

For the definition of "federal act", see 26-1-1W NMSA 1978.

For Sections 505, 507 and 513 through 520 of the federal act, see 21 U.S.C. §§ 355, 357 and 360c to 360j.

The 1987 amendment, effective June 19, 1987, inserted "or device" near the beginning of Subsection A; in Subsection A(1) deleted "with respect thereto" following "an application" and inserted "for the drug"; added Subsection A(3); in Subsection B inserted "Paragraph (2) of" near the beginning; in Subsection D(2) substituted "is subject to Subsection I of Section 26-1-11 NMSA 1978" for "is subject to Section 11I of the New Mexico Drug and Cosmetic Act"; added Subsections D(3) and (4); and made minor stylistic changes throughout the section.

Am. Jur. 2d, A.L.R. and C.J.S. references. — What is "new drug" within meaning of § 201(p) of Federal Food, Drug, and Cosmetic Act (21 USCS § 321(p)), 133 A.L.R. Fed. 229.