A legal issue is brewing between companies conducting at-home DNA testing and some state governments, which object to the fact that these companies are conducting such tests without state permits and/or physician supervision, according to a report by Forbes.

Forbes reported on the issue as follows:

New York State’s Department of Health recently sent letters raising the specter of fines and jail time to 23andMe, its competitor Navigenics, their partners Illumina and Affymetrix, and five other gene-testing outfits. The state says they can’t do their scans without permits. (Navigenics says it uses a licensed doctor.) California is investigating 12 public complaints about certain mail-order gene testers.

In Maryland a health department official frets that self-prescribed gene tests have "serious potential for causing harm" if misinterpreted. Overall, 24 states prohibit or limit certain testing without a doctor’s involvement, according to the Johns Hopkins University’s Genetics & Public Policy Center.

Should the states have the ability to regulate gene testing, and should that regulation require the supervision by a licensed doctor?   This question raises some interesting public policy issues.

As a consumer, if I were to pursue gene testing, I am not sure that I would want such testing run through a physician, since in all likelihood, that would mean that the test results would end up in the hands of my insurance company, whereas, if I paid a company privately for such tests, the information is more likely to remain private.   My preference would be to have the tests privately run and then take responsibility myself for ensuring that the appropriate medical tests were run subsequently to screen for whatever illnesses that the testing had indicated I would be genetically inclined to catch.

In contrast, I am sure that a physician’s perspective would be that a physician needs access to the results in order to better treat the patient.  The physician might argue that the results are worthless unless the physician has access to the information.  He or she might even argue that it is not in the patient’s best interest to be told the results without having a physician there to interpret the data or to offer some support as needed.

I am interested in hearing what the blog readers have to say on this issue: should private companies be allowed to run gene screening tests privately without being regulated by the individual states and without requiring that the tests be run under a physician’s superivision? If you have any comments on this issue, please pass them along and we will post them to the site.

There is little doubt that this debate is going to continue to receive attention in the near future as gene testing increases in popularity.  We will keep you posted here at the California Biotech Law Blog as the debate further develops.