May 2025 

In Vitro Diagnostics (IVDs) are reagents, instruments, and systems intended for use in the diagnosis of disease or other conditions, including a determination of the state of health, to cure, mitigate, treat, or prevent disease. Such products are intended for use in the collection, preparation, and examination of specimens taken from the human body.

IVDs that are being tested for possible future marketing are devices, and may also be biological products. They are test articles under Food and Drug Administration regulations and are subject to FDA regulations governing investigational devices (IDE regulations). When IVDs are used in research involving human subjects (or human samples), FDA’s regulations for the protection of human subjects (informed consent and IRB review) generally also apply.

IDE Exempt Studies

Studies may be exempt from FDA’s IDE regulations when the research meets all of the following criteria:

• The sponsor has labeled the device properly;
• The testing is non-invasive;
• The testing does not require an invasive sampling procedure that presents significant risk;
• The testing does not by design or intention introduce energy into a participant; and
• The testing is not used as a diagnostic procedure without confirmation of the diagnosis by another, medically-established diagnostic product or procedure.

*Investigators should also be aware that IVD testing performed in the laboratory setting is subject to the requirements of the Clinical Laboratories Improvement Act (“CLIA”).  If an investigator intends to share results of an IVD test with research subjects or their care providers, the IRB must be informed of this fact and the testing and reporting of results must conform to the JHM CLIA Policy.  

IRB Review

Unlike DHHS regulations, FDA regulations do not provide for exemption from IRB review when research involves existing specimens and the investigator records information without identifiers or linking codes.Nor do FDA regulations define “human subjects” with reference to the identifiability of the subject or of the subject’s private information (i.e., the donors of specimens/samples remain “human subjects” even when the specimens/samples are de-identified).  Current FDA guidance indicates that IRB review is required for any IVD study involving human specimens/samples, even when the research involves no identifiers and the biological materials cannot be linked to any identifying information.

Informed Consent

Under the DHHS regulations (the “Revised Common Rule”) and FDA regulations [1] (the “FDA Final Rule”), numerous variations of elements of consent, the process, and documentation are possible, depending on the nature of the study, the risk to the subjects, and the justification for the alteration or waiver requested.

In addition to the FDA Final Rule, the FDA will permit waiver of informed consent if the research is FDA-regulated and meets the criteria for “emergency research,” [2] and the FDA will exercise “enforcement discretion” regarding the requirement for informed consent for certain IVD studies which use de-identified tissue samples or specimens but for which all of the elements directly below are not met. 

Alteration or Waiver

Under the Revised Common Rule and the FDA Final Rule, the IRB may approved alteration or waiver of consent if:

• The research involves minimum risk to subjects;
• The waiver or alteration will not adversely affect the rights and welfare of the participants;
• The research could not practicably be carried out without the alteration or waiver;
• If the clinical investigation involves identifiable private information or identifiable biospecimens, it could not practicably be carried out without using such information or biospecimens in an identifiable format; and
• Whenever appropriate, the subject will be given additional information about the research after it is completed.

Enforcement Discretion

The FDA will exercise “enforcement discretion” and permit the IRB to approve the study without requiring informed consent for IVD research if all of the following criteria are met [3]:

• The research must be conducted under an IRB-approved protocol;
• The research must meet criteria for an IDE exemption (see above) [4];
• The research must use specimens left over from clinical care, specimen repositories, or other research (i.e., the specimens may not be collected specifically for the proposed research, and no additional specimen may be collected for the purpose of research);
• Individuals caring for the patients are different from and do not share information about the patient with those conducting the investigation*;
• The specimens are provided for research without identifiers (codes are permissible only if neither the investigator nor anyone associated with the study has access to the code key or can identify the person who was the source of the specimen);
• Any clinical information supplied with the specimen must not be individually identifiable;
• No test results from the research may be reported to any subject or that subject’s health care provider; and
• The supplier of the specimens must have established policies and procedures to prevent the release of identifying information.[5]

FDA recommends that the IRB review the policies and procedures that are in place to determine (1) that identifiers will not be released to investigators, and (2) whether there is the potential for test results to be needed for clinical patient management (e.g., FDA suggests that if the research involves a public health threat such as anthrax, it may be necessary to report positive results; therefore informed consent might be required).

*We do not interpret this criterion to exclude investigators who also perform clinical services, provided that the research meets the other criteria established by FDA. 

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