The FDA and Thee
Regulators move to control 23andMe's new genetic tests.
Review & Outlook: The FDA and Thee - WSJ.com
The good news is that modern medicine advances at a much faster pace than government, but the bad news is that the regulators eventually catch up. Right on cue, the Food and Drug Administration is now bidding to take over the emerging field of personal genetics.
In a warning letter on Monday, the FDA ordered 23andMe to "immediately discontinue marketing" its genetic tests. Consumers have been mailing in a saliva sample and $99, and the six-year-old Silicon Valley start-up analyzes their genome to reveal information about their predisposition for some 250 diseases, as well as inherited traits and ancestry.
23andMe—named after the number of chromosome pairs in human DNA—does not make diagnoses. The company helps patients and curiosity-seekers to understand their own biology. Patients can also offer their code for research projects—nine of 10 do—to contribute to discoveries about the relationships between genetics and health that could transform traditional medicine. 23andMe has already assembled the world's largest DNA registry for Parkinson's disease.
The FDA can't abide such unsupervised innovation. The agency is declaring 23andMe's service an "adulterated" product under the Federal Food, Drug and Cosmetic Act of 1938, in one more case of 20th-century law undermining medical progress in the 21st.
The FDA lacks any specific statutory authority to regulate genomic sequencing technologies. President Obama knows this, because as a Senator in 2006 and 2007 he introduced bills that would regulate the genomics industry. They never passed. Yet in 2010 the FDA simply decreed by fiat that these tests are considered new medical devices that require premarket testing and approval.
23andMe has been working with the FDA on approval for years, and the agency's letter scolds the company for offering new tests and services before it has received permission for the older versions. Imagine an iPhone app that needed federal approval for every update. But behavior that would be considered visionary in Mountain View is the quickest way to offend the FDA establishment.
The FDA claims that 23andMe merely has to prove that its tests are safe and effective. But what does that even mean given that FDA's main concern seems to be what patients will do with the information the company provides?
The not-so-benevolent paternalists at the FDA write that "serious concerns are raised if test results are not adequately understood by patients," and 23andMe's direct-to-consumer model may inspire people to "self-manage" their care. For example, a false positive for the BRCA1 genetic marker that increases the risk for breast cancer "could lead a patient to undergo prophylactic surgery, chemoprevention, intensive screening, or other morbidity-inducing actions."
Or maybe it would lead a woman to talk to her physician about the options and, er, double check the results before undergoing a life-altering operation.
23andMe told us in a statement that, "Our relationship with the FDA is extremely important to us and we are committed to fully engaging with them to address their concerns." That's what companies hostage to the bureaucracy always say, but it might do better to mount a legal counterstrike.
The agency's 2010 regulatory move was extralegal, and the Supreme Court and appellate circuits have begun to rein in the FDA for abridging freedom of speech. The judiciary has held in recent years that regulations on off-label drug use, cigarette labeling and other topics violate the First Amendment, and that people have a right to know basic information about their own bodies and to use it to make decisions about their own lives.
23andMe might also want to start scouting locations for a new overseas headquarters, if only to send a message about how Mr. Obama's regulators are chilling innovation and investment. You can mail a tube of saliva anywhere. The scientists and entrepreneurs helping to lead medicine into the genomic era have little need to operate inside the U.S. if that means begging the government for a hall pass every time they want to do something new and potentially life-saving.