Consumer Genetics Needs More Transparency, Not Excessive Regulation

6/23/10

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One might argue that it all depends on the test. For example, a DTC product that examines one’s genetic ancestry poses no clear health threat in need of regulation. Indeed, this is consistent with the FDA’s proposed “risk-based” regulation of genetic tests.

However, as consumer genetic tests continue to increase in scale and sophistication—extending towards complete genome sequencing—they will offer individuals an increasingly broad overview of their genetic makeup, including information on a range of conditions that cover the entire spectrum from eye color to early-onset Alzheimer’s disease. More importantly, the level of risk created by these tests will depend to a large degree on how consumers choose to use the information the tests provide.

Creating coherent distinctions between genetic tests based on their degree of risk will require a much more nuanced understanding of the tests and how they are used. While this information might be acquired through traditional regulatory channels, an option the FDA appears to be strongly considering, this would likely come at a cost: dampening crucial innovation in an emerging field, by imposing time-consuming and costly regulatory burdens on genetic test providers.

Fortunately, there is a much easier way to gather the information necessary to responsibly review and, ultimately, to regulate genetic tests. Our solution can be summarized in a single word: transparency.

Today’s DTC genetic testing marketplace is difficult for consumers, medical professionals and regulators alike to navigate. At this point we simply do not know enough about the products on the market: who is selling DTC genetic tests, exactly what those companies are testing for, how they use genetic information to calculate the probability of a particular trait or disease, and how they are presenting that information to consumers. We know even less about how consumers are actually using that information.

The answer to this uncertainty is not to remove these genetic tests from the market or to take them out of the hands of consumers. What is needed now—by regulators, doctors and consumers alike—is better information. Better information, in turn, is a function of increased transparency.

The National Institutes of Health recently announced the creation of a voluntary genetic testing registry to provide a single, comprehensive source of information about genetic tests, including DTC genetic tests. This is a welcome development, but its voluntary nature means that not all genetic test providers are likely to participate. As the FDA and Congress consider how to respond to the burgeoning genetic testing industry, the most sensible course of action is to refrain from premature regulation and focus first on acquiring better data.

Extending the reach of the registry by making participation mandatory for all companies offering genetic testing, including companies offering DTC genetic tests, will do just that. A mandatory, government-run registry will enable consumers, patients, doctors and regulators to directly compare and evaluate products. Importantly, it will also allow both public and private consumer protection groups, including the FTC, to police the field, weeding out companies that fail to register their tests or whose tests do not live up to their claims. Longer-term, the information accumulated by the genetic testing registry will help the FDA and other regulatory bodies understand how these tests are used and the degree of risk, if any, that they present to consumers, enabling the development of appropriately tailored regulations down the road.

Transparency may not be a dramatic solution, but now is not the time for drama. If our ultimate goal is protection, not paternalism, we need to find a way to preserve direct access by consumers to their own genetic information, while ensuring that consumers are fully aware of the limitations of that information. We should achieve this not by placing genetic testing under regulatory lock and key, but by shining a bright light through the entire industry and demanding greater transparency.

Dan Vorhaus is an attorney with Robinson, Bradshaw & Hinson and Editor of the Genomics Law Report. Follow @

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