The Genetic Mess in California – A Round-Up, and My Thoughts

On June 9, 2008, the California Department of Public Health sent cease and desist letters to 13 companies that offer genetic testing. According to the letters, the companies are in violation of certain sections of the Business and Professions Code of California, including offering “a clinical laboratory test directly to the consumer without a physician order” since such tests “must be ordered by a physician or surgeon” (according to these officials). Copies of the letters are available here. The companies receiving letters are:

• 23andMe
• CGC Genetics
• deCODEme Genetics
• DNA Traits
• Gene Essence
• HairDX LLC
• Knome
• Navigenics
• New Hope Medical
• Salugen
• Sciona Inc
• Smart Genetics
• Suracell Inc

I’m entering this discussion late, although I’ve been watching with great interest. What I’ve noticed is that much of the discussion, both in the blogosphere and the media, is confusing or ignoring the fact that there are actually two questions involved here.

Question One:

The first question is solely a legal one: are these companies actually in violation of the California statutes? Ultimately, this question won’t be decided by the California DOH or the genetic companies; it will be up to the courts to decide (if it gets that far). It is important to note that just because officials at the California Dept of Health have interpreted these statutes this way doesn’t mean (1) that their interpretation is correct, or (2) that this type of testing is what the statute was meant to protect or defend against. Craig Manson at GeneaBlogie raises the same point:

The other point is that there is not necessarily a violation of state law simply because a mid-level bureaucrat says there is. There are questions about how the statute was intended to be interpreted and even some constitutional questions here.

Since at least a few of these companies have decided to ignore the cease and desist letters, they must believe that their testing is outside the prohibitions of the statutes, or that the statutes are unconstitutional (e.g. they impinge on an individual’s constitutional rights).

Question Two:

The second question is a matter of opinion: SHOULD genetic testing by these companies without a physician be illegal? This is a question that involves personal philosophy, ethics, and beliefs, and we should each answer this question for ourselves. I know what I believe, and I know what many of my fellow bloggers believe. But I hesitate to force my answer on anyone else. I would rather see a system where people can answer this question for themselves and then order from the appropriate company (i.e. a company with a physician, or a company without a physician).

What About the Uninsured?

And finally, there is one other point that I haven’t seen discussed anywhere else. Although genetic testing is expensive right now, it won’t be for much longer. In the next 5-10 years I’ll be able to send off my DNA and receive my entire sequence for much less than $1000. However, if a company is forced to employ geneticists and physicians to order tests and then interpret them for the customer, the price of testing will remain higher than it otherwise could be. Alternatively, an individual might be forced to visit a doctor who will then order the test for them, and then they’ll have to visit again when the results are returned. In either scenario, the expense of sequencing might be beyond the reach of most low- to middle-class Americans (as it is now). To compound this problem, many of these people do not have health insurance.

I agree completely that people who are uninsured should spend money on proper doctor’s visits rather than genetic testing, but in a few years – as we learn more – that will change. In the future genetic sequencing could have a huge impact on a person’s health and medical care. What happens if the uninsured can’t afford genetic testing because of these potentially expensive regulations? It might be a little far-fetched, and I don’t have an answer, but I thought I’d at least raise the concern.

The Round-Up

Here are some blogosphere reactions:

• The Gene Sherpa – Do you hear that sound Mr Anderson?; Streets of Philadelphia; R’Uh-R’Oh Shaggy!!!; DNA Traits among the 13; Daniel is a Great Guy!; Let’s Just Say…..; ABC, Misinformation and Government Regulation. Unfortunately, many comments left on Steve’s posts have been less than civil, which is very disappointing. Although I don’t agree 100% with his opinion, leaving rude comments (often anonymously) on his blog is not the way to let him know. Additionally, Steve is all for genetic testing and patient empowerment, and I’m certain that he isn’t proposing more doctor involvement just for a few extra billing events.
• Genetic Future – Cat-fight over California; Some surrender, some fight on: genetic testing companies respond to the California letter; Gene Essence: what bad personal genomics looks like; The market for personal genetic testing. As usual, Daniel at Genetic Future writes interesting and timely posts. The Gene Sherpa and Genetic Future have been discussing some of the issues back and forth on their blogs, which has been very interesting to follow.
• Genome Boy – It’s my duck in a box!
• Epidemix – Attn, California & NY: DNA is Data; The Public Health Case for Direct-to-Consumer Personal Genomics
• Adaptive Complexity – Getting Your DNA Sequenced: Should Regulators Crack Down on Genetic Testing Companies?
• Pimm – Future stop: California health officials against personal genetics risk-takers; Innovation stop: “All they’ve done is created an extra billing event for the doctor”
• bbgm – The right to get yourself genotyped; Your SNPs are your information
• TechCrunch – Cease And Desist: California Tries to Unravel 23andMe’s Genetic Testing

Here are some articles about the dilemma in California and New York:

• Wired.com – When’s a Gene Test Not a Gene Test? – Navigenics’ response to California’s cease and desist letters.
• Wired.com Blog – Are Internet Genetic Testing Services Really Illegal? – An actual analysis of the legal issues, something that very few others are actually doing.
• Wired.com Blog – Two More DNA Testers Shutter California Operations; 23andMe to California: We’re Not Ceasing or Desisting; Top 10 Reasons that Regulators Should not Hinder Genetic Testing; Attention, California Health Dept.: My DNA Is My Data; Exclusive: DNA Testers Reveal Cease-and-Desist Letter; Meeting Reveals California’s Hardline Stance on DNA Testing
• New York Times – Gene Testing Questioned by Regulators
• TechNewsWorld – Genomics Meets Sacramento
• MIT Technology Review – Genetic-Testing Fight Continues
• Reason.com – California Public Health Bureaucrats Attack Your Genetic Liberty
• The Huffington Post – California’s Misguided War on Self-Knowledge
• The Mercury News – Genetic-testing business all but unregulated
• San Francisco Chronicle – Genome testing firms defy state order to stop
• Portfolio – DNA Testers Scramble to Meet Deadline
• The Guardian – California clamps down on genetic testing industry
• TechDirt – Why Do You Need A Doctor’s Note To Get A Genetic Test?
• Forbes.com – California Orders Stop to Gene Testing