BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:   May 3, 2005

                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
                            Gloria Negrete McLeod, Chair
                 AB 1428 (Levine) - As Introduced:  February 22, 2005
                             (As Proposed to be Amended)
           
          SUBJECT  :   Genetically modified and cloned pets.

           SUMMARY  :   Establishes the Cloned and Genetically Modified Pet  
          and Consumer Protection Act (Act) that prohibits the retail sale  
          or transfer of cloned or genetically modified pets, as defined,  
          within California.  Specifically,  this bill  :  

          1)Establishes the Act to include all the provisions therein.

          2)Defines "Clone" as the practice of creating or attempting to  
            create an animal by:  (a) Transferring the nucleus or  
            chromosomes/chromatin from a cell into an egg cell from which  
            the nucleus or chromosomes have been removed for the purpose  
            of creating a cloned embryo; (b) Implanting a cloned embryo to  
            initiate a pregnancy that could result in the birth of an  
            animal; or, (c) Any cloning technology seeking to create an  
            animal genetically identical to another animal, whether living  
            or dead.

          3)Defines "Genetically Modified" or "Transgenic" as genetically  
            altered by introducing DNA from another species or through  
            engineered endogenous constructs, as defined.  This definition  
            excludes hybridization between closely related species, as in  
            traditional hybridization.

          4)Defines "Pet" as any amphibian, bird, fish, mammal, or reptile  
            that is kept for companionship rather than utility.

          5)Provides that no person may engage in the retail sale or  
            transfer of cloned or genetically modified pets within  
            California.

          6)Permits any person to file a complaint with the Department of  
            Health Services (DHS) alleging a violation of this Act,  
            pursuant to conditions specified within the Act. 

          7)Provides that the Director of DHS may levy administrative  
            penalties against any person who violates this Act in the  








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            amount of $500,000 per violation.  Any administrative  
            penalties received shall be deposited in the General Fund.

          8)Provides that if any provision of the Act, or its application,  
            is held invalid, that invalidity shall not affect other  
            provisions or application that can be given effect without the  
            invalid provision or application.
          
          9)Establishes that no part of the Act shall be construed as  
            interfering with properly conducted scientific experiments or  
            investigations performed under the authority of the faculty of  
            an accredited medical college or university of this state.
           
          FISCAL EFFECT  :   Unknown

          COMMENTS  :   

           Purpose of this bill  .  According to a February 2004 Opinion  
          Research Corporation national survey, 84% of those surveyed  
          stated that companies should not be allowed to genetically  
          engineer and sell pet animals.  In an ABC/BeliefNet Poll (August  
          2001), six out of ten Americans said all animal cloning should  
          be illegal.  This bill does not prohibit animal cloning in  
          California.  This bill does not prohibit the cloning of pets  
          such as cats or dogs in California.  This bill does not prohibit  
          the cloning of non-pet animals such as horses or cows for retail  
          sale in California.  This bill does not prohibit the cloning and  
          retail sale of animals that may sometimes be pets, such as mice,  
          that are being cloned specifically for research or other  
          utilities.  

          According to a co-sponsor of this bill, the American  
          Anti-Vivisection Society (AAVS), "This bill is intended to  
          prohibit the sale of cloned and genetically modified pets to  
          private consumers, or pet owners of California" and is not  
          intended to interfere with the important research and practice  
          of  accredited medical colleges or universities of this state.  

          The cloning of pets for public sale is very new.  In fact, the  
          first cloned cat was born in 2001 and the first cloned cat sold  
          to the public, Little Nicky, was born in 2004.  There are no  
          long term or short term studies of these cloned pets.  It is  
          unknown how these new cloned animals will age, how they will  
          reproduce, or if there are any unintended consequences of  
          cloning these domesticated animals.  Furthermore, no studies  








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          have been done on the transgenic pets that are already for sale,  
          but not actually in existence yet.  

          AAVS asserts: "genetically modified pets, including glowing fish  
          and hypothetical 'hypoallergenic cats' are being marketed to  
          consumers.  Genetic modification relies on the births of  
          numerous animals, of whom only a tiny percentage might carry the  
          desired trait.  And, because they don't yet exist,  
          'allergon-free' cats have not been evaluated as being safe for  
          people."  Furthermore, "The pet cloning industry is currently  
          operating without federal regulatory oversight, in violation of  
          the law.  Pet cloning companies are essentially conducting  
          animal experiments, but have no accountability to regulatory  
          agencies charged with enforcing animal welfare laws.  Therefore,  
          there are no inspections and no authenticated public record of  
          how many animals are used in experiments or their fate."

          Without regulation we have seen the invention of a transgenic  
          glowing rabbit solely for display as a piece of art (France,  
          2003) and the mass manufacture of transgenic glowing fish  
          (Florida, 2003) solely for the viewing pleasure of consumers who  
          want to spice up their home aquariums. 

           Basic cloning process  .  A simplified description of the cloning  
          process follows:

          1)An egg is harvested from an unrelated donor animal and the  
            nucleus removed (enucleated egg).
          2)An adult somatic cell is harvested from the donor. The cell  
            can be skin, blood, bone or muscle.  The cell will have a  
            complete copy of the donor's DNA in its nucleus.
          3)The DNA is removed from the cell with a device used to extract  
            the nucleus.
          4)The donor cell is fused to the enucleated egg and either  
            treated with chemicals or jolted by electricity to trick the  
            egg into thinking it's been fertilized.
          5)Once the egg has become a viable embryo it is inserted into a  
            surrogate animal to develop into a clone.

           Species cloned  .  The following is a brief history of species  
          that have been cloned:

          1)Frogs (1962) Unsuccessful
          2)Carp (1963) Successfully cloned
          3)Sheep (1996) "Dolly"








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          4)Rhesus monkey: (2000) "Tetra"
          5)Pig: (2000) 
          6)Cattle: (2001)
          7)Cat: "CC" (2001), Little Nicky, Tabouli and Baba Ganoush  
            (2004)
          8)Mice: (2002)
          9)Rabbit: Glowing bunny (2003).  Human-rabbit hybrid in China  
            (2003)
          10)Mule: (2003)
          11)Horse: (2003)
          12)Rat: (2003)
          13)Fruit flies: (2004)

           California transgenic fish prohibition  .  SB 245 (Sher), Chapter  
          871, Statutes of 2003, provides that it is unlawful to spawn,  
          incubate or cultivate any species of finfish belonging to the  
          family Salmonidae, transgenic fish species, or any exotic  
          species of finfish, in the waters of the Pacific Ocean that are  
          regulated by the California.  

           GloFish regulation  .  These transgenic fish are the result of  
          inserting a fluorescent sea coral gene into the eggs of zebra  
          fish and then breeding the "glowing" fish for pets.  The sale of  
          these fish are currently prohibited in California.

          According to Yorktown Technologies, L.P., the manufacturers of  
          GloFish, there are three levels of regulation their product, the  
          GloFish, must pass through before they will be allowed for sale  
          in California.  

          The first level of oversight is provided by the U.S. Food and  
          Drug Administration (FDA) to ensure human health and  
          environmental safety in relation of the product.   However, in  
          this case, the FDA decided not to formally regulate Glofish.

          The second level of independent oversight lies with the state of  
          Florida where the manufacturer is based.

          The third level of review lies with the California Fish and Game  
          Commission (Commission), which in February 2003, adopted  
          regulations prohibiting the sale, importation, transportation  
          and possession of any genetically modified fish without a  
          special permit.  Yorktown Technologies states: "While the  
          Commission initially denied our request [for a special permit]  
          in December 2003 due to ethical considerations, they  








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          subsequently voted to allow our request in April 2004.  However,  
          we were later informed that, in addition to the commission  
          approval, we would be required to submit an Environmental Impact  
          Report in compliance with CEQA."

           Cloned and transgenic pets: an unregulated product  .  According  
          to the Center for Food Safety, which supports this bill, "Cloned  
          pets and genetically modified pets, such as allergen-free cats  
          and the GloFish, have escaped federal regulation.  The GloFish  
          for example, did not go through the full regulatory review  
          process at the U.S. Food and Drug Administration yet is  
          currently being sold to consumers (although the GloFish is not  
          being sold in California, this fish could be sold here soon).   
          The U.S. Department of Agriculture (USDA) is also currently not  
          regulating companies selling cloned and genetically modified  
          pets.  As a result, there is a huge gap in the federal  
          regulatory process for cloned and genetically modified animals.   
          This means that there is no monitoring to ensure the welfare of  
          the animals used to create cloned or genetically modified pet  
          animals.  There is also no mandatory federal oversight to ensure  
          that these novel pets do not pose threats to human health and  
          the environment."

          Unlike other laboratories that experiment on cats and dogs, the  
          laboratories researching and producing cloned and genetically  
          modified pets for public sale are not regulated or accredited by  
          agencies or institutions requiring basic standards of animal  
          care and use.  Because pet cloning is an unregulated industry,  
          no one outside of the labs knows the success rates and other  
          details of the cat and dog experiments.  

          Genetic Savings and Clone (GSC), which opposes this bill and is  
          the only business currently cloning pets in California, states  
          that its internal standards already exceed any likely to be  
          required by regulation.  In fact, GSC Chief Executive Officer  
          Lou Hawthorne stated in a magazine article, "Our internal  
          welfare protocols have higher standards than those required by  
          the Animal Welfare Act.  I find it impossible to imagine that  
          government oversight would constrain our activities."

           'Lifestyle pets'  .  Allerca, Inc., a new genetic technologies  
          company, is already taking $500 deposits for "hypoallergenic"  
          cats that have a particular gene 'knocked-out' that produces Fel  
          d 1, a certain protein known to cause allergies in people.   
          However, the company has never successfully genetically altered  








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          a cat in this manner.  Looking to create a broad market in  
          'lifestyle pets', Allerca also plans to sell 'genetically  
          protected' cats (that resist certain feline diseases) in the  
          future. 

          In its letter of support, the People for the Ethical Treatment  
          of Animals (PETA), states regarding genetic engineering of  
          designer pets: "These 'frankenpets' have genes from other  
          animals spliced into their DNA to make them more attractive to  
          consumers.  But while it may be possible to create  
          hypoallergenic cats or dogs who glow in the dark, these animals  
          will suffer the same painful defects as cloned animals.  No  
          animals should have to suffer for such petty reasons."

          However, the California Veterinary Medical Association (CVMA),  
          which opposes this bill, cites a newspaper article about the  
          benefits of genetic modified research, such as the development  
          of hypo-allergenic cats.  "UCLA and Virginia Commonwealth  
          University have joined together to develop a new treatment that  
          involves linking a feline protein that causes cat allergies to a  
          human protein that stops immune system cells from releasing  
          histamine, the chemical that sets off allergy symptoms.  The  
          article states that the results of the UCLA research 'may lead  
          to better therapy for millions of people who are allergic to  
          cats - including 14 percent of children from age 6 to 9?and for  
          the estimated 50 million Americans who suffer from some type of  
          allergy."  Furthermore, CVMA states, "If genes can be  
          manipulated to prevent certain animal breeds from being born  
          with predisposition to diabetes, or in the UCLA case study,  
          prevent breeds from producing allergens, these developments  
          could have widespread implications for animal health and human  
          health."

          Cloning endangered species  .  GSC states:  "The canine and feline  
          cloning research being done at GSC may improve the technologies  
          available for the cloning of endangered species.  We are  
          developing non-profit partnerships to provide technical know-how  
          on canine reproduction (especially in vitro fertilization, IVF,  
          and cloning) to organizations that work to repopulate endangered  
          canids, including varieties of wolves, foxes, and wild dogs.   
          GSC has begun to subsidize the gene banking of endangered  
          relatives of the cat and dog.  We gene bank one male and one  
          female member of these species at no charge, and we gene bank  
          additional members at a reduced rate."









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          Additionally, according to the Cat Fanciers' Association, Inc.,  
          which opposes this bill, "the technology funded through the  
          sales of cloned pet animals can be applied to endangered species  
          threatened by extinction.  Cloning may provide alternatives to  
          capture and transport of wild animals to zoos." 

           Cloning the best pets for public service  .  GSC states:  
          "genetically exceptional, highly trained dogs perform valuable  
          services for humans, such as assisting people with disabilities,  
          rescuing disaster victims, and detecting arson and explosives.   
          Only certain individual dogs within specific breeds have the  
          right mix of sensitivity, intelligence, temperament, and other  
          qualities to successfully perform these jobs.  Furthermore, less  
          than half the dogs entering assistance or other working dog  
          training programs end up being placed with clients; the others  
          are rejected for health and/or behavioral reasons."

          Further, according the GSC, "once a suitable dog is placed, it  
          may be able to provide assistance for eight or nine years.  Or  
          it may become ill, lame, or die long before that, in some cases  
          due to genetic disorders including progressive retinal atrophy,  
          hip dysplasia, thyroid problems, etc.  When an assistance dog  
          becomes unable to perform due to early illness or death, a  
          client faces the burden of coping with that loss as well as  
          coping with training and acclimating to a new dog.  By providing  
          clients with clones of the healthiest, best-performing  
          assistance and other working dogs, we will reduce the frequency  
          and duration of the transitional periods."

           Gauging the success of cloning  .  Experimentation in this field  
          has already shown that cloned and genetically modified animals  
          are subject to abnormally high rates of miscarriage, early  
          death, deformity, disease, and other serious medical conditions.  
           For example, many cloned animals are stillborn or are missing  
          limbs and organs.  The CEO of GSC, Lou Hawthorne, acknowledges  
          that up to 45% of the cats born alive will die within the first  
          month of life.

          In support of this bill, People for the Ethical Treatment of  
          Animals states:  "For every animal considered 'successfully'  
          cloned, many others are born with deformed limbs and organs.   
          These unfortunate animals are killed, and those with less  
          apparent abnormalities linger and soon die.  It is estimated  
          that 98 animals die for every animal successfully cloned - but  
          even a successful clone, such as little Nicky, is likely to have  








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          an abbreviated life plagued by illness.  The most famous cloned  
          animal, Dolly the sheep, suffered progressive lung disease and  
          premature arthritis and was euthanized while still young." 

          Furthermore, in its letter of support, Friends of the Earth  
          claims: "Pet cloning poses unnecessary health risks to the  
          cloned animals.  Cloning also raises questions about the welfare  
          of maternal surrogate animals that would be kept in confinement  
          in unknown numbers in order to allow for cloned embryos to  
          mature."  AAVS explains, "To produce genetically modified  
          kittens, female cats are bought from animal dealers to be used  
          as 'surrogate mothers.'  They often undergo multiple abdominal  
          surgeries to implant embryos and extract fetuses.  This use of  
          animals is significantly invasive and experimental; there is no  
          legitimate comparison to traditional animal breeding."

          GSC refutes these claims.  "The transfer of clone embryos to a  
          surrogate mother is no more invasive than a common spay.   
          Routine and effective steps are taken to prevent discomfort to  
          the surrogate mother.  During their pregnancies and deliveries,  
          our surrogate mothers spend most of their time in the care of  
          private breeders who are under contract to GSC and who adhere to  
          our strict animal care protocols.  The clones are born either at  
          a breeder facility or a veterinary clinic, and are weaned either  
          at a breeder facility or a private residence with the same high  
          standards of care our surrogate mothers receive.  The comfort of  
          all animals in our care is important to us." 

           Consumer protection concerns  .  The sponsors of this bill claim  
          that pet cloning companies are misleading the public and  
          continue to profit from DNA banking services, even though a  
          handful of cats have been cloned and no dog has ever been cloned  
          successfully anywhere in the world.  One company that promotes  
          so-called genetically modified hypo-allergenic cats has never  
          actually produced such a cat, but began taking deposits from  
          interested customers.  

          Additionally, cloned pets will not be exact copies of pets their  
          owners have lost, as a pet's personality is determined by  
          environment as well as genes."

          However, the Animal Council asserts in its letter of opposition,  
          "those few consumers interested in obtaining a cloned animal are  
          aware of the process issues and that any animal from any source  
          is subject to varied risks and an inherently limited life  








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          expectancy.  Truly motivated consumers would seek outside  
          sources if they cannot obtain services in California."

          Current fees of gene banking, the first step to cloning your  
          pet, range dramatically depending on the service requested.   
          PerPETuat, a California pet gene banking business, charges $700  
          for processing and genotyping your pet's DNA and an additional  
          $90 per year for storing the DNA.  GSC offers several services  
          ranging from $295-$1,395 for gene banking with an additional  
          $100-$150 annual storage fee.  Currently, the fee to have your  
          pet cloned at GSC it $32,000 - although your gene banking fees  
          are deducted from the price of the cloning. 

           Chilling effect on scientific activity  .  The Animal Council,  
          which opposes this bill, believes "AB 1428 would have a chilling  
          effect on scientific activity in California that otherwise  
          benefits California residents in many respects.  These include  
          local access to gene banking of the DNA of valuable animals; a  
          wide range of potential applications from research involving  
          genetics and cloning of animals, including commercially valuable  
          or endangered species; enhanced understanding of the  
          heritability of traits in breeding programs of animals, pets or  
          otherwise; and for a very few consumers the opportunity to  
          obtain animals genetically like another - for whatever reason." 

          According to the Center for Genetics and Society, which supports  
          this bill, "the new genetic technologies are arguably the most  
          profound consequential technologies ever developed.  Used  
          wisely, they hold great promise for treating disease and  
          alleviating suffering.  If abused, however, they could have  
          consequences of nightmarish proportions.  They could open the  
          door to a world in which all forms of life - plants, animals,  
          and human beings - have been turned into artifacts to be  
          manipulated, programmed, and commodified, at whim of any one  
          individual.  If ever there was a set of technologies that called  
          for the utmost precaution regarding their development and use,  
          it is these."

           Cloning and pet overpopulation  .  The National Pet Alliance,  
          which opposes this bill, asserts, "that feral cats and their  
          unweaned offspring are being euthanized in large numbers at  
          shelters due to their unadoptability, has no relation to a need  
          to prohibit cloning a replacement beloved deceased pet.   
          Further, the scientific value of such research cannot be  
          underestimated, when one considers that cloning, and the  








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          associated scientific research involved, could very well lead to  
          a method to save a beloved, soon to be deceased, human  
          relative."

          According to the sponsors, cloned pets that are sold are not  
          required to be spayed and neutered.  Considering that pet  
          cloning companies forecast sales of thousands of animals, and  
          people who pay tens of thousands of dollars for animals likely  
          will want to breed the animals, pet cloning will exacerbate the  
          already severe cat and dog overpopulation.  

          Further, according to Californians Against Pet Cloning, a  
          co-sponsor of this bill, "One company has claimed at times that  
          the animals used in its experiments are adopted into private  
          homes after use, in one instance, that total was 245 dogs and  
          cats.  Even if true, this is not a realistic plan if the pet  
                                                                             cloning industry develops, because as the industry grows so does  
          the number of former experimental animals in need of adoption." 

          In addition to the many animals used during the pet cloning  
          process, clones also may be born that are unhealthy or do not  
          have the desired traits and, therefore, are not "sellable,"  
          potentially adding to an already staggering problem and further  
          burdening shelters and municipal animal control agencies.

          However, according to GSC, "pet cloning may actually reduce pet  
          overpopulation.  We have developed a program in which we  
          purchase reproductive tracts from spay clinics in order to  
          obtain the cat and dog eggs we need for the cloning procedure.   
          Spay clinics typically discard the tracts, but thanks to our  
          program, these clinics have a new source of revenue that helps  
          continue their valuable work.  In this way, our cloning  
          technology helps prevent the uncontrolled breeding of cats and  
          dogs."

          In its letter of opposition, the Animal Issues Alliance included  
          a copy of a letter published in the Los Angeles Daily News  
          stating:

               Maybe humane groups are taking too narrow a view on  
               cloning.  Would we never again hear 'I just want ONE like  
               him/her' as an excuse for breeding a litter of ten puppies  
               - nine of which will end up homeless?  Would it stop  
               hobbyists who regularly breed litters of 'disposable'  
               animals to produce one show-quality champion?  Does it mean  








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               that breeders who produce and sell continuous litters to  
               'preserve the bloodline' would be out of business?

               Could cloning be the end of mass production by puppy mills  
               and exploitation by pet shops of baby pets crammed into  
               crowded pens and filthy cages?  If cloning means that  
               wanting one pet would result in producing only one pet, the  
               overpopulation problem would be solved and the suffering  
               and killing would cease.

           "Sale" versus "cloning," and related "facts  ."  It may be helpful  
          to reiterate that this bill prohibits the  sale  of cloned pets  
          within California, but this bill does  not  prohibit cloning.   
          Although this bill may create some inhibitions to cloning (by  
          eliminating certain profit motives and adversely impacting a  
          limited number of businesses within the state), cloning will  
          continue.  Consequently, while the debate over the merits and  
          demerits of cloning may be relevant to this bill, that debate is  
          not entirely on target.

          Likewise, the debate over whether or not, and to what degree,  
          cloning should be regulated involves issues that are not exactly  
          on target.  This bill does not create a regulatory scheme;  
          rather, this bill imposes a  prohibition  on the sale of cloned  
          pets in California.  Moreover, it seems clear that this bill  
          will not prevent California consumers from possessing cloned  
          pets.  If California consumers are rich enough and motivated  
          enough to acquire a cloned pet within the state, it is very  
          likely that those consumers will do the same thing out-of-state.

          Much of the controversy associated with this bill is based on  
          speculation that is debatable and over which reasonable people  
          could reasonably differ.  One clear "fact" is that we cannot be  
          confident about what cloning means for the future.  Because of  
          the unknowns, this bill raises two fundamental and opposing  
          questions about the proper role of government and, more  
          specifically, about  when  government should intervene.  First,  
          because of the uncertainties and possible harms resulting from  
          cloned pets, should the sale of these pets be prohibited now?   
          Second, and conversely, because of the uncertainties and  
          possible benefits resulting from cloned pets, is it premature to  
          prohibit the sale of these pets?
           
          REGISTERED SUPPORT / OPPOSITION  :   









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           Support 
           
          American Anti-Vivisection Society (co-sponsor)
          Californians Against Pet Cloning (co-sponsor)
          International Center for Technology Assessment/Center for Food  
          Safety (co-sponsor)
          United Animal Nations (co-sponsor)
          Animal Legislative Action Network
          Animal Protection Institute
          Association of Veterinarians for Animal Rights
          California Lobby for Animal Welfare
          California Federation for Animal Legislation
          Capitol Resource Institute
          Center for Genetics and Society
          Contra Costa Humane Society
          Doris Day Animal League
          Friends of the Earth
          Humane Society of the United States
          In Defense of Animals
          National Anti-Vivisection Society
          New England Anti-Vivisection Society
          Paw Project
          People for the Ethical Treatment of Animals
          Numerous Individuals

           Opposition 
           
          Animal Council
          Animal Issues Movement
          California Veterinary Medical Association
          Cat Fanciers' Association, Inc.
          Genetic Savings and Clone
          National Pet Alliance
          Pet Industry Joint Advisory Council
          Numerous Individuals
           
          Analysis Prepared by  :    Tracy Rhine / B. & P. / (916) 319-3301