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Authors:
Dr Alex Faulkner, Cardiff University, UK
Dr Ingrid Geesink, Cardiff University, UK
Professor Julie Kent, University of West of England, UK
Dr David FitzPatrick, University College Dublin, Ireland
keywords:
tissue engineering; risk; regulatory regime; jurisdiction; technological zone; European
Union
Alex Faulkner
Tel
+44 (0)29 20 874 739
E-mail FaulknerAC@cardiff.ac.uk
Prepublication version. See Science as Culture 2008, 17(2) for published article
Abstract
Tissue engineering is one potential arm of the much-heralded regenerative medicine.
We use the concepts of technological zone, risk framing and regulatory jurisdiction to
analyse what risks are formulated in the zone of tissue engineering and whether
those risks are reflected in emerging regulatory policy in Europe. In the regulatory
jurisdictions of the European Union, public health risks have become increasingly
important. Tissue engineering challenges pre-existing regulatory frameworks.
Scientific-industrial actors formulate the risks of tissue engineering in three primary
frames: technological safety risk; therapeutic efficacy risk, and economic risk. Study
of the prevailing configuration of European Commission institutions and the EU
process of regulatory regime-building for tissue engineering, shows that risk frames
are mobilised selectively. Whilst the technological safety frame and the economic
frame are strongly mobilised, therapeutic efficacy especially comparative efficacy
is not. Additionally the regime avoids any Europe-level position on the so-called
ethics of sourcing and engineering tissues and cells. Efficacy and ethics are defined
as the jurisdiction of national authorities, underpinned by the subsidiarity principle.
Outcomes include the likely banning of certain therapeutic technologies by European
countries that have objections to products deriving from controversial materials and
processes, and the prevention of adoption of products due to efficacy concerns, so
creating new imbalances in the European therapeutic marketplace. Consequently,
the tissue engineered medical products that European societies consume, at least in
the near term, will reflect medically-defined needs of the European population to a
limited and patchy extent.
Prepublication version. See Science as Culture 2008, 17(2) for published article
Introduction
Innovation in medicine is one site of the increased awareness of risk amongst many
sectors of society. Human tissues and cells have been used in transplantation
medicine for many decades, but now there is an increasing global trade and
commercialisation in human tissues and cells, organs and body parts. They are
becoming used in innovative ways as part of the new development of tissue
engineering (TE), aimed at producing medical treatments that typically combine
manufactured biomaterials with viable human tissue and cells.1 Commentators
predict a massive growth in 'regenerative medicine' over the next three decades.
Some TE products using viable human cells are already used in healthcare. These
are mainly skin systems for burns and chronic ulcers, cartilage regeneration for knee
joints, and bone repair. Many further applications are under research and
development.2 Scientists and developers regard tissue engineering as technically
challenging rather than scientifically complex, it does not have obvious defining
features that can be grasped and construed in the public domain. Unlike some other
areas of biotechnology, the existing healthcare applications of TE are relatively
uncontroversial in the public sphere.
The transplantation of human tissues and cells, and engineered therapies using
them, are important and strongly expanding fields of medicine in the view of the
European Commission. These technologies, apart from giving rise to issues of public
health risk and ethical concerns amongst the public, also evoke other sorts of
concerns for governments of advanced industrial societies such as their contribution
to national economies and to healthcare services of the future. Availability of the
existing products in different European countries is very patchy due partly to variation
in national regulatory approaches.
Pharmaceuticals and more recently medical devices have been under EU regulatory
regimes for some time, and now policymakers attention has turned to focus on the
circulation in the European marketplace of human tissues and cells for therapeutic
use. Currently, a myriad of different national legislations applies to TE products,
ranging from medical device, medicinal product and biologics regulations to
unregulated general consumer protection and voluntary codes of practice, where the
lack of unified procedures amounts to a regulatory patchwork (Faulkner et al., 2003).
The existing European-level regulatory regimes are seen by regulators and industry
actors to be challenged by the novel and hybrid character of the material technology
itself and by uncertainties of organisational models and resourcing of the sector.
Stakeholders representing science and industry have thus been active in promoting a
need for new regulation to support the development of the technologies of tissue
engineering and their potential markets. Investment in EU markets3 is perceived by
industry as limited by this absence of clear regulatory controls. As in other sectors,
industrial representatives argue for global harmonisation of regulatory standards. It
has been suggested that in the absence of agreed regulatory controls for TE,
populations in Europe may be denied potential benefits of emerging technology. The
European Union has thus embarked upon a number of regulatory actions in this field.
The political reaction to crises such as BSE and HIV blood contamination suggests
that the European Union is experiencing a shift towards more risk averse and more
stringent regulatory policies in many fields. The domain of public health and safety
has become an important arena for regulatory decision-making for the European
Union. In such an environment, it is important to understand the different framings of
risk in relation to new technologies, the range of stakeholders and viewpoints that
these may represent or exclude, and the pattern and significance of their linkages to
policy as mobilised in regulatory regimes. In this paper, therefore, we ask the
Prepublication version. See Science as Culture 2008, 17(2) for published article
Prepublication version. See Science as Culture 2008, 17(2) for published article
objects that are framed in discursive work, and to the substantial, meaningful
characteristics that are attributed in such framings.
Here, we discuss the framing of risks as occurring in the context of, and as
constituting part of, a potentially emergent technological zone (Barry, 2001) of tissue
engineering. A technological zone is defined by the linked circulation of materials,
knowledge, standards, property and people rather than by given geographical,
political or institutional boundaries Barry gives high energy physics as an example
where activity is both highly concentrated institutionally and highly dispersed
geographically. Whilst we do not attempt a detailed exploration or critique of the
concept here, we adopt it as loosely applicable to tissue engineering, in preference
to, for example, industrial sector which has connotations of multiple technologies,
stable institutional interdependencies and rules of engagement, and product-based
classifications (cf. Malerba, 2004). These connotations are inappropriate in the case
of the emergent and unstable set of activities and actors known as tissue
engineering. Given the well-known analyses of technology in the sociology of
technology and science & technology studies, we take it as read here that a
technological zone is to be understood, broadly, as a sociotechnical phenomenon.
Amongst the participants and would-be participants in a TE technological zone, riskframing takes place in interaction with controversy-strewn discourses of how the
possible rules of engagement in the zone should be constructed, in other words in
interaction with discourses of regulatory regime-building and regulatory policy. An
anthropological theory of science has analysed uncertainties of risk assessment and
risk management strategies in terms of competing groups attempts to establish
authority over regulatory jurisdictions (Hogle, 2002). Regulatory policy indeed can
shape the scope of what products and processes society will recognise as tissue
engineering and which it will not, and what types of institution will legitimately
participate on what terms. An examination of regulatory regime-building can reveal
the types of risks that public policymaking selects and constructs as salient and the
jurisdictions that are construed as regulatable. In such an approach, different
participating actors (stakeholders) constructions of risk become implicated in a
political process of constructing regulation, which we understand here as not only a
safeguarding process, but also an enabling one. In the case of TE, such participating
actors include scientists and engineers, regulators, trade associations and
companies, national governments, EU committees, patient groups, and medical
professionals, amongst others. Regulatory regimes can shape the technologies that
will reach us as patients in the future, and they must therefore embody a vision of
societal benefit. However, like other governance institutions, the European Union
must contend with alternative and possibly competing visions of the social good.
Established jurisdictions such as enterprise, public health, medical device, tissue
bank and pharmaceuticals, as well as a variety of national government institutional
interests, may be threatened by ambiguous technologies such as tissue engineering.
Case study
The paper uses documentary and interview data from research that investigated
relations between industry, regulators, policy makers, scientists, clinicians and
consumers in the EU and in the UK specifically. Between 2002 and 2004 the authors
conducted over 60 in-depth semi-structured interviews with strategically-placed
informants, mostly face to face and some over the phone. We attended many
international conferences in Europe where the science and industry of TE was
discussed and presented by its practitioners, and where regulatory issues were often
debated alongside scientific and commercial issues. Tracking of ongoing regulatory
developments continues via further interviews and documentary analysis. The
Prepublication version. See Science as Culture 2008, 17(2) for published article
discussion illustrates the discourse of members of what we can regard as a looseknit issue network (Rhodes, 1997). Some participants in the network can also be
considered more integral members of a diverse but closer-knit policy-shaping
community. Our focus is, therefore, loosely speaking, the scientific-industrial R&D
community.4 These actors are positioned in the heart of contemporary medical
technological innovation, characterised by close relationships and transactions
between the academic and commercial scientific worlds of biomedicine.
We now turn to the primary empirical focus of this paper, framings of risk analysed
through a detailed consideration of the discursive formulation of TE risk amongst
networks of scientific and industry-based actors who are engaged in the building of a
new zone for tissue-engineered technology in Europe.
Frames of TE risk in a biomedical scientific-industrial network
Uncertainty
The potential risks of tissue engineering technology, and ways to manage or control
these risks, have been the subject of extensive debate in policy-oriented technical
and industrial expert networks in Europe (e.g. Wassenaar et al., 2001; Williams,
2001; EUCOMED, 2003).
The risks might be that it fails, that it doesnt work, safety, disease transfer,
cancer you never know.
(M-EU4, European manufacturer, interview 2003)
Technical uncertainty, as in the quotation above, is highlighted in the framing of TE
risk. It applies to various aspects of the technology such as the understanding of
cells action in the body, and includes unknowable risks, as illustrated by several
participants:
Dealing with biological materials is always much more complicated and
unpredictable than dealing with the types of materials that engineers deal
with.Batch control is difficult itll be a long, long time before you get to
know everything about even fairly purified biological materials.
(M-EU1, European manufacturer, interview 2003)
The type of dangers that they expect, with manipulating cells, you never
know. Cells that you put in the skin and they end up in the kidney for
example... thats also what you see that regulators are afraid of, what
happens with the cells when you put them in a media it might get some kind
of cancer cell afterwards.
(M-EU4, European manufacturer, interview 2003)
I would have no qualms about using tissue engineering myself as a patient
but in three, four years time if youve been a recipient of a tissue engineered
product and a new test comes out which is more accurate, more sensitive to
the material or contaminants that could be in that product then the risk
benefit changes as you go along.
(M-EU9, European manufacturer, interview 2003)
Indeed the innovative material technology of TE and the status of living implanted
tissue is associated with an emergence of new forms of evidence (Hogle, 2005). For
example, it has been argued that animal models have only limited clinical validity for
TE (Tienhoven et al., 2001). Donated cells or tissue can lead to risk of bio-
Prepublication version. See Science as Culture 2008, 17(2) for published article
Prepublication version. See Science as Culture 2008, 17(2) for published article
cells to a production facility in the USA and returning cultured cells back to the
originating country and patient.
Members of the TE networks frequently compare autologous and allogeneic
approaches. This scientist saw the use of patients own material as less risky than
using donor cells:
My own feeling is that were going to see advances in tissue engineering for
patients by using the autologous cell routes, using a patients own cells,
treating somewhere, putting them back into their body and there, I think, the
risks probably are less likely than with the other [allogeneic] route.
(S1, UK academic research scientist, interview 2003)
A similar opinion comes from a scientist working for a commercial developer in
Europe:
I would say that our strategy was the use of the cells of the same patients, so
we do not have risks.... so even in some case we are also using the cells of
the people who have infected diseases like, you know, hepatitis, by using
the same cells of the patients you are in the best situation because you
have to return to the patient, his own cells, so without any problems.
(S-EU1, scientist in European tissue engineering company, interview 2003)
... there is no risk and that is why most of these countries look at it as
transplants, because they say there is no foreign material in these products.
(M-EU10, European manufacturer in autologous TE, interview 2003)
The risks of transferring infection and disease were considered lower, and
immunological incompatibility seen as less problematic. But even the autologous
approach requires extensive, careful handling during the processing of cells to
exclude danger from infectious supplements or other contamination. Of course
mixing up cells must be avoided. Generally, at the moment the small scale of the
production process means the chances of mixing them up are almost negligible:
Part of it is logistics... I would like to be able to say that we only ever handle
one lot of cells in the hood at one time. I would love to have more space and
more hoods and to be able to segregate things further than we do. But we
make sure that we only have one operator handling one set of cells, from one
patient, at one time. And then its a case really of maintaining a trail of
labelling that goes all the way through.
(S5, research scientist in clinical setting, interview 2003)
A related safety technological concern lies in the transport of autologous cells. A
company like Genzyme, that offers autologous cultured cartilage on a commercial
basis in several European countries, does not have local production facilities in
Europe. After the cells are harvested from the patient, they are transported to the
USA for culturing, and after a few weeks sent back for implantation in the patient.
The cells are vulnerable though, and their viability is limited. Locally or regionally
based laboratories are seen by some of the scientists as both enhancing safety
controls and being more efficient. Issues of cross-border controls as well as safety
and contamination in handling may be raised. But in terms of individual risk for the
patient the use of autologous tissue is here portrayed as low-risk.
A closer look at the engineering process reveals further issues. Several substances
are typically added to the culture medium, such as growth factors to stimulate cell
Prepublication version. See Science as Culture 2008, 17(2) for published article
growth, antibiotics against infection, and foetal calf serum to support cell growth. As
pointed out in a technical risk assessment study, residues from these components
could remain associated with cells and could induce an unwanted immunogenic or
toxic response after implantation (Tienhoven et al., 2001, p. 14). A major concern
reported was virus transfer caused by the use of bovine material (foetal calf serum) in
this instance in reference to both skin and cartilage technology:
So safety issues are that bovine material might pass on bovine spongiform
encephalopathy (BSE). Depending where you get your material from All of
us culture using foetal calf serum which is bovine Commercially we pay
about four to five times the price if we buy a bottle of serum from New
Zealand than if we get whatevers cheapest from the UK or whatever. What
we are actually paying for is the piece of paper saying that it came from New
Zealand from a herd that is never known to have had BSE.
(S5, research scientist in clinical setting, interview 2003)
An alternative is to develop patients own serum technically more difficult but some
manufacturers do use this, or serum free media. However, bovine material may not
be regarded technologically as entirely unacceptable. A European manufacturer
expresses ambivalence on this point:
... If you look at the WHO classifications for health risks, bovine serum [is] one
of the lowest risk bovine products. You have spinal cord and eyes and all that
sort of stuff as being particularly high risk of TSE transmission whereas serum
is pretty low down on the listThe first company who develops a serum free
media will be a very rich company.
(M-EU9, European manufacturer, interview 2003)
Thus the risks to human safety of the use of animal material is contested.6 Different
frames of reference are being drawn upon here. Firstly, some TE actors are
apparently responding to the extreme concern surrounding the public framing of BSE
in the UK, thus drawing upon perceived social values and political concern even in a
causal discourse on safety. But secondly, it is also possible to frame the risk from
animal material in terms of a gradation of high to low risk as expressed in the policy
of an expert public health organisation with high credibility such as the World Health
Organisation.
Thus on the one hand we see autologous TE being framed as essentially risk-free in
terms of the technology and its safety implications for human health. It is portrayed
as a self-contained technology even though it is typically produced in combination
with biomaterials which are foreign to the host patient. In this account a patients cells
are simply removed, multiplied, activated and returned in a self-contained cycle that
avoids the possibility of rejection of foreign material by the patients body. In this
framing the patient is portrayed as receiving implanted material that has the same
identity as that which was removed.7 However, on the other hand we see that this
primary framing of self-containment is troubled by, in particular, xenotransplantation
and logistics. Some TE technologies can, even retrospectively, be classified as
xenotransplant products, raising the spectre of transmissible disease risk with high
public profile, and more regulatory hurdles for manufacturers. These risks are framed
as individual and technical, associated with contamination, virus transfer or
implantation into the wrong patient.
Prepublication version. See Science as Culture 2008, 17(2) for published article
If you start taking cells from one patient to another, then its a completely
different story. This is difficult, very difficult.
(S-EU2, European research scientist, interview 2003)
The distinction between autologous and allogeneic products is drawn primarily in
terms of the different sourcing pathways used for human material and the greater
degree of manipulation of allogeneic technologies. The commercial potential of
allogeneic products may in principle be seen by industry as greater than the
customised treatment, service model of autologous techniques where scaling up is
problematic. Off the shelf TE products use donor tissue, sometimes in combination
with a manufactured scaffold comprising biomaterials and/or growth factors (as do
several autologous products). The main applications currently available are living
skin substitutes for burns patients and diabetic patients with leg and foot ulcers.
These typically use tissue grown from donors (e.g. neonatal foreskin) and are
combined with a bioabsorbable scaffold. Technological safety of allogeneic products
has been given a high profile in debate about TE regulation on the European stage
and is of concern to the scientific, regulatory and industrial communities.
One scientist summarised the issues:
There are a huge number of issues. In terms of cells if you have a product
with cells within them, there are issues about infection transfer, so youre
talking about donation and proof of that. Depending on the source of cells, for
instance if its a xenograft type cell that youre generating this cross species
Theres concern about tumour generation if youre using stem (cell) or a cell
that is highly proliferative. Concerns about migration of cells away from the
site where they were due to act, so a cell that could be very good, if it was
implanted into the brain could be damaging if it went to another part of the
brain or it went to another part of the body Rejection and immune
responses to the cells. It would impose a course of immunosuppressive drugs
on the patient for a long period of time but then theres a whole range of
manufacture issues about how do you quality assure with a product based on
living tissue.
(S7, UK academic research scientist, interview 2003)
The issues raised are entirely concerned with the technology, its source, its
manufacture and its safety. The range of technical issues is extremely broad and
their uncertainty is emphasized. Scientific commentary from other sources also
highlights this set of issues (Tienhoven et al., 2001; Wassenaar et al., 2001).
The skin product Apligraf, the first human TE product to receive approval from a
national regulatory authority, is made of the cultured cells derived from circumcised
human foreskin and contains nonviable bovine material. Although not given
centralized EU approval, similar allogeneic products are on the EU market and have
included products such as Dermagraft (developed by Advanced Tissue Sciences,
and originally marketed by Smith & Nephew, UK). The manufacturer of Apligraf,
Organogenesis, claims the product has gone through extensive safety testing: the
mothers blood and donors cells are thoroughly screened and found negative for
pathogens and other contaminants (Organogenesis, 2005). Still, these biological
technological risks of cell storage safety and quality of the cell bank are primary
areas of concern for companies and regulators. In addition to virus or disease
transfer and immune rejection, other concerns, as with autologous technology,
include the use of animal materials:
10
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In terms of producing scaffolds, only the origin of the scaffold, when there are
animal derived or human derived materials, I think there is always going to be
concern. And this is going to be a hurdle for introduction. ...The risk is very
small when you talk about these scaffolds that are animal derived, that are
carefully handled. But still, if there are alternatives where there is no risk for a
company, if you have a synthetic product, they're not liable for bio
contaminations so the market is wide open... that's the way for success.
(S-EU2, European research scientist, interview 2003)
Donors are screened for infectious diseases including HIV, hepatitis B and C, and
syphilis. There is a suggestion in no risk for a company that the broader framing of
risk as social or ethical concerns about infection in the public sphere is entering into
this construction. As with autologous products, questions of logistics and prevention
of contamination in handling and transport processes figure here too:
It is not known at the present time how to make all the steps in sterile
conditions at low cost. That uncertainty will have to be removed before tissue
engineering becomes more than accessible to just a limited number of
patients.
(S6, UK academic research scientist, interview 2003)
It can be noted here that practical concerns about the maintenance of quality
assurance risk management practices may themselves constitute a risk to the
commercial exploitation and availability of tissue engineered medical products. The
issue of sterility is formulated as much as an economic issue as a technical issue.
Thus similarities and differences exist in the ways in which autologous and allogeneic
TE technologies are characterised. Allogeneic TE technologies are to be implanted
into individual patients but carry with them greater risks of disease transmission
because the same product may be implanted into larger numbers of people, thus
representing collective or aggregate public health risks. Unlike autologous TE there is
no basic framing of the technology as risk-free; rather there is an emphasis on
uncertainty, on its socially distributed sources and recipients in the population, a
need for future technical advances, and on existing risk-control procedures and
testing. As with the risks of autologous technology, the use of animal materials is
seen as a problematic intrusion in the (as yet ill-formed) public image of tissue
engineering. This highlights its hybrid material technology that cannot be controlled
by attempts to frame some applications as risk-free and self-contained.
The perceived risks discussed above can appropriately be described as comprising a
broadly technological safety frame. This designation is necessarily multidimensional,
including especially components of biological safety and biophysical processes in the
interaction between technology and the human body. Safety as portrayed in this
discourse is intimately tied to the material constitution and technical characteristics of
tissue engineered technologies. The safety risks associated with tissue engineering
technologies, according to these TE actors, range from infectious disease transfer to
issues of immuno-rejection, toxicity, and uncontrolled cell proliferation.
Turning to the relationship between the framing deployed by these scientific actors
and its relationship to the development of regulatory policy, we can note that aspects
of these frames are reflected in the shaping of regulatory jurisdictions produced by
the European Commission. The SANCO (i.e. public health directorate) Directive on
human tissues and cells (2004)8 highlights disease transfer as the prime area of
concern, the Commission stating that:
11
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12
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14
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15
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the difficulty is until they actually say what it is and what the rules and
regulations are governing it, its going to be very difficult, why have we got
different rules and regulations about the products that were using in one
country to another? and I just think harmonisation has to be the way forward,
if were going to work with it and exist within Europe... I dont care what it is,
as long its harmonised
(Cl3 UK clinical scientist, interview 2003).
In summary, commercial or economic risks therefore also include the question of
patients access to the technology (who will be able to afford it or how healthcare
systems might provide access), and an as yet unknown population that would
actually benefit from the treatment. This frame also includes the dimensions of viable,
sterile processing methods, and models of production that might enable the hybrid
form required for mass customization of autologous technologies on an industrial
scale as well as the clearer approaches for donor-based products. There is variation
in the underlying model of the projected patient marketplace, ranging from the
individual self-contained patient to collective patient groups amenable to off-theshelf treatments. The underlying concern with economic viability and
competitiveness in the international marketplace is evident. In fact, in spite of the
reservations illustrated here about the difficulties of scaling-up autologous
applications, there are several Europe-wide, European Commission-funded
collaborative projects aimed at developing technology to make this economically
possible.5
16
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17
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18
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the section above illustrating technological risk, the primary framing was clearly
focused on human safety in relation to disease transmission, echoing the
technological safety frame deployed by the scientists/industrial actors that we have
described. On the other hand, the Regulation for entry to the marketplace of TE
products, we suggest, combines two frames, namely the technological safety and
economic frames. Evidence for this comes, for example, from the introductory
organising principles of the European Commissions proposal document for this
Regulation, presented as a proposal for advanced therapies 9 that include tissue
engineering. It lays out several key aims and risk-framing assumptions. These
principles frame risks in ways that we can recognise from our discussion of the
technological frame concerned with safety and the economic frame concerned inter
alia with the viability of alternative organisational models for producing TE products:
Traceability from the donor to the patient, long-term patient followup and a thorough post-authorisation risk management strategy are
crucial aspects to be addressed when evaluating advanced therapies.
Advanced therapy products are usually developed by innovative
small and medium-sized enterprises, highly-specialised divisions of
larger operators in the Life Science sector hospitals or tissue
banks (EC DG Enterprise & Industry, 2005, p2)
Similarly, the Director of DG Enterprise and Industry summarised the main aims of
this Regulation as being to Guarantee a high level of health protection; Harmonise
and facilitate market access; Foster competitiveness; and Provide overall legal
certainty (Lalis, 2006). The proposed advanced therapies regime includes some
market approval fee reductions for small companies attempting to bring new products
to the marketplace through an EU-centralised regulatory agency an explicit
measure to support the zone and to foster competitiveness of a European presence
in a developing global sector. None of the core organising principles refers to matters
of therapeutic risk or comparative effectiveness of alternative therapies in healthcare
delivery. It is notable, therefore, that in this instance the technological and economic
frames appear to be more firmly embedded in the European institutions and their
construction of regulatory jurisdictions than does the clinical therapeutic risk frame.
This accords with the relatively weak organisation of healthcare at the transnational
level and the strong position of national healthcare systems, which in the regulatory
field uphold the European principle of subsidiarity of nation states. Such a conclusion
would be familiar to analysts of the regulation of other innovative medical technology
such as pharmaceuticals in the EU (Abraham and Lewis, 2000).
Earlier consultation on the regime for TE products had produced a proposal
(superseded by the Advanced Therapy proposal noted above) that autologous TE
applications, framed as less technically risky, could be controlled by national
authorities under a form of negotiated subsidiarity, whilst allogeneic technologies
should be assessed by an EC centralised body (EC DG Enterprise, 2004). However,
the widespread framing of autologous TE technological safety risk as low began to
be challenged even on technical grounds: it appeared that this framing was based
mainly around existing products, namely some skin systems and cartilage
regeneration processes relatively uncontroversial and low profile therapies. When
more high profile self-contained potential therapies were contemplated, for example
heart muscle regeneration for patients who have suffered heart attack, in which the
risk to health could be much higher, then one of the rationales for subsidiarity to a
national jurisdiction was undermined. This may be one reason why the later proposal
for an Advanced Therapy regulation is for an EC-centralised jurisdiction for most TE
products and potential applications.
19
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20
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actors will not always share definitions of criteria for a regimes effectiveness, as
shown in the principle of therapeutic efficacy identified here. Our analysis shows that
in order to assess the configuration of an emerging regulatory jurisdiction for
biomedicine it is useful to understand the range of frames deployed by scientificindustrial actors who have insight into the scientific, industrial and clinical issues
which confront regulators and their institutions. Our analysis has enabled tensions
between the range of risk assessments and the institutionalisation of regulatory
jurisdictions to be assessed.
As we have seen in examining the emerging EU regulatory template for human
tissues and TE, each frame formulated by the scientific-industrial actors finds some
expression but the institutional basis, and the regulatory regime that embeds
technological safety and economic risk (and benefit) at supranational level is stronger
than that for therapeutic efficacy risk framing. As indicated above, regulatory regimes
can shape the technologies that will reach patients and in this field the ways in which
the multidimensional riskiness of TE technologies is built in to the regulatable
jurisdiction may be expected to influence the kinds of products that enter the market.
The European Commission strategy-makers and EU politicians believe that Europe
needs new therapeutic technologies, but such need must be negotiated in the
context of existing therapeutic options for many medical conditions. Whilst political
commitment to assessing and acting on the efficacy of new medical technologies,
and especially comparative efficacy in relation to existing technologies, is growing (as
instanced for example by the health technology assessment work of the National
Institute of Health and Clinical Excellence (NICE) in the UK), it is still relatively weak.
Arguably, the growth and strengthening of pan-European technological and
economic regulation of biomedical technology generally over the last decade has
been paralleled by the growth of national health technology assessment efforts, to
identify the most efficacious technologies for given medical conditions in given
national healthcare systems. Thus we can note that the risk frames that we have
discussed as being strongly inscribed in the EUs regulatory jurisdictions do not
support a concept of societal therapeutic need for efficacious TE or other
technologies at the level of healthcare systems. This would require analysis of
comparative efficacy of competitor technologies alongside epidemiological and other
analysis. Such work is left to national jurisdictions. In practice then, supply and
demand for TE products will be influenced by decisions at this national level. As we
noted at the beginning of this paper, there is a boundary between the jurisdiction of
public health (safety from disease transmission, cross-national) which is increasingly
Europeanised, and health care (therapeutic service delivery, national) which is
primarily a national matter. Our analysis shows that in the TE zone this boundary is
being reproduced, and we argue that this explains why, despite the interlocking
nature of the frames employed by scientific-industrial actors, matters of comparative
therapeutic efficacy are neglected at the European level.
The technological zone of European TE is constructed here as an economic zone
(echoing the concept of techno-economic network (Callon, 2004)). European
regime-building embeds transnational technological safety standards and a
framework for supporting economic viability and competitiveness. As Barry
suggested, making a technical practice more social or cultural may serve to
restrict its movement (Barry, 2001, p38-9). In the matching between scientificindustrial TE risk frames and the template for an EU regulatory jurisdiction, matters of
comparative therapeutic efficacy in healthcare delivery, and matters of ethics of
tissue and cell materials, through the subsidiarity principle, are in effect deemed to be
local national and cultural matters. They are thus restricted to being outside the
rules of engagement of a TE medical technology zone on the European Union stage.
22
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This is likely to have practical consequences in influencing the trading and availability
of TE therapies across the countries of Europe, in spite of shared technical
standards, safety procedures and centralised market approval decisions.
23
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Notes
24
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See Brown et al. (2006) for a detailed exploration of the relationship between tissue
engineering and xenotransplantation and their regulation.
In April 2006 the so-called Tissues and Cells Directive (EC DG SANCO,
2004/23/EC) became effective in Member States of the EU, establishing a general
regulatory framework for the safety and quality of these human substances. The
legislation was adopted after years of preparation and deliberation by DG SANCO
(2002), the Commission unit responsible for consumer and health protection, and
under pressure of different interested parties, in order to accommodate the urgent
need to regulate the conditions under which human tissues circulate within the
European Market (EGE, 1998). Based on the public health article in the Amsterdam
Treaty, the Tissues and Cells Directive contains harmonised safety and quality
standards for the ways in which tissue establishments deal with human tissues and
cells, including their donation, procurement, distribution and use. It contains detailed
guidelines for registered tissue establishments covering implementation of a quality
system, accreditation, organisation of control and inspection within Member States,
data protection and confidentiality, assurance of traceability of donors and the design
of a single European coding system for the main characteristics and properties of
tissues and cells. This Directive is supplemented by more detailed guidelines for the
implementation, including Directive 2006/17/EC on technical requirements for the
donation, procurement and testing of human tissues and cells, and a second stage
covering processing, preservation, storage and distribution, which was adopted in
October 2006.
9
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Acknowledgments
The authors are grateful for funding support from the United Kingdom ESRC/MRC
programme on Innovative Health Technologies (IHT) 2002-04, award number
L218252058, and ESRC grant RES-000-22-1814. Early versions of this paper were
presented by IG during the 2003 conference of the European Sociological
Association (SSTNET) in Murcia, Spain, and the 2003 BSA Risk & Society Study
Group Conference in Plymouth, UK. The authors thank participants at these
conferences for their critical comments and support, and all interviewees for their
participation in this research. Les Levidow and two anonymous reviewers provided
valuable comments, for which the authors are grateful.
26
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