DNA DIET – ASA breach ruling

, , ,

Posted 10 March 2015

Meyersfield-JoffeWhat does one say about two health professionals who continue to market a test that claims to be effective for assisting consumers with weight-loss, without any independently, peer reviewed, published evidence that the test is able to indeed fulfill this claim? We would expect that ethical health professionals would desist from doing so, in particular after an ASA ruling. But this is not in the case of Dr. Daniel Meyersfeld and dietician, Yael Joffe. A breach complaint was laid with the ASA.

[note note_color=”#f6f5a2″]DNA DIET / H STEINMAN / 17153
Ruling of the: ASA Directorate
In the matter between:
DR HARRIS A STEINMAN Complainant(s)/Appellant(s)
DNALYSIS (PTY) LTD Respondent [/note] 25 February 2015

http://www.asasa.org.za/rulings/dandiet-hsteinman-17153

BACKGROUND

In DNA Diet / H A Steinman / 17153 (27 June 2011) the Directorate ruled that the respondent’s claims were unsubstantiated and in breach of Clause 4.1 of Section II of the Code.

The advertisement at the time featured the lower body of a woman and the accompanying wording stated, inter alia, “WITH SCIENCE, DIETING ISN’T A FAD.*”

The body copy stated as follows:

“Introducing one of the first products of its kind in the world, where science and nutrition meet, to create a scientifically proven diet and exercise plan; the DNA DIET.

Genetics plays a significant role in an individual’s ability to lose weight and their responsiveness to different diets. DNA DIET analyses 7 genes that impact metabolism and fat loss. These gene-based results provide personalised dietary changes, an eating plan to achieve optimal weight loss, and guidance as to the type and amount of exercise required, removing the guess work involved in choosing the best eating plan for you.

Order your DNA DIET test kit by visiting us on www.dnadiet.co.za, or book an appointment with one of our accredited dieticians.”

The Directorate noted that there was “… nothing in the respondent’s submissions to verify that its test can pinpoint such genetic factors in the manner claimed, and apply these findings in such a personalised and specific manner to enable guaranteed weight loss, due to the personalised diet and exercise plan resulting from ones DNA, or genetic predisposition”.

The respondent was instructed to withdraw its advertising with immediate effect and within the deadlines stipulated in Clause 15.3 of the Procedural Guide.

In a subsequent ruling issued on 28 October 2011, the Directorate rejected the respondent’s new substantiation because it was not satisfied that the evidence submitted was compliant with Clause 4.1 of Section II (Substantiation). The respondent was reminded that the original ruling remained binding.

On 12 March 2012, the respondent was found to be in breach of the original Directorate ruling, but no sanctions were imposed other than instructing it to “permanently remove any claims that create the same overwhelming impression” insofar as its product and efficacy was concerned.

On 13 July 2012 the respondent was again found in breach of the Directorate ruling and parties were afforded an opportunity to comment on whether or not sanctions were warranted.

Finally, on 23 October 2012 the Directorate imposed sanction in terms of Clause 14.2 of the Procedural Guide. In terms of this sanction, the respondent was expected to obtain pre-publication advice from the ACA Advisory Services for its amended advertising. The respondent was also cautioned that if further breach allegations or new complaints were received, the Directorate will expect proof that such pre-publication approval was obtained from the ACA Advisory Services.
SUBSEQUENT TO THE RULING
On 3 February 2015 the complainant, Dr Steinman, lodged a breach complaint against the respondent’s website advertising for its “DNA Diet”. The complainant specifically referred to http://www.dnalysis.co.za/weight-loss-health-products/DNA-Diet.aspx, which reads, inter alia, as follows:

“One of the first products of its kind in the world, DNA Diet tests for 13 genes that impact metabolism and exercise. The genes comprising the DNA Diet test have associations with body weight and body mass index, and all meet stringent criteria for utility in genetic screening tests. We provide a detailed report with recommendations that include dietary changes and an exercise programme …

Genes involved in regulation of energy expenditure, appetite, and fat metabolism, all play an important role in weight regulation. In fact 40% to 80% of the variance in body weight is due to genetic factors. This helps to explain why not everyone becomes obese even though people may be exposed to similar environments.

Genetics determines an individual’s susceptibility to obesity when exposed to an unfavourable environment. It also explores the way a person responds to diet and exercise”.

It was submitted that, although the words have changed, the inference from the webpage (which includes the misleading name “DNA Diet”) is that this product/service assists in predicting a diet that will allow the consumer to lose weight. The site now adds a disclaimer, which reads:

“While healthy nutrition may in certain cases result in weight loss, this depends on many factors. The DNA diet provides a tailor made nutrition and exercise programme. Healthy eating and exercise may result in weight loss, but this is not guaranteed.”

However, this is insufficient to dissuade the consumer from spending money on this test, for the consumer will not know whether the test works in less than 1% of consumers, and that the science is still insufficient to assist.

Reference was made to a recent study published in a “highly reputable journal” titled Obesity, which confirmed that measuring one’s DNA does not help with constructing a more efficient diet. The complainant also attached what appears to be an article titled “DNA diets: They’re just not ready for prime time, warn experts”, which discusses the topic.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.
RESPONSE
Clearcopy, on behalf of the respondent, submitted arguments on the matter. For the sake of convenience, these submissions are split into two issues below:

Validity of a late breach allegation

The respondent pointed out that the original rulings, as well as the substantiation ruling and breach rulings were made several years back. Since then, the respondent has consulted with various legal experts, and attempted to amend its website appropriately without completely ceasing to advertise.

While it is aware that there are no provisions in the Code that prevent the complainant from submitting a breach at any time subsequent to ruling, there is cause for concern now, given the lateness of the breach allegation.

The respondent amended its website immediately after the previous rulings, and the website has been live ever since then. The complainant, however, has chosen to wait almost 2 years before lodging a breach allegation. This is unfair in equity and in law; and that the Code allows the ASA to take this into account. The unfairness lies in the fact that in any judicial, quasi-judicial or administrative action, the respondent is entitled to finality of the dispute at some point.

The respondent further argued that the courts have recognised that undue delay on the part of an applicant might adversely influence the court in the exercise of its discretion:

In Louw v Mining Commissioner, Johannesburg (1896 3 OR 190, 200) Judge Gregorowsi famously said, in speaking of a delay of 2 years, that “the applicant now wishes to drag a cow long dead out of a ditch”.

More recently, in the leading case of Wolgroeirs Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad (1978 (1) SA 13 (A)) the court regarded a three year delay in application as a basis to refuse to set a decision of an administrator aside despite being persuaded on the merits.

While the ASA is not bound by the approach of the courts, it is highly persuasive. By submitting a breach allegation almost 2 years after the amended advertising started running, the complainant now “wishes to drag a cow long dead out of a ditch”.

It was submitted that the Directorate should exercise its discretion as allowed for in terms of Clause 8.2 of the Procedural Guide and refuse to investigate this complaint, which is clearly malicious.

Reference was also made to a similar decision in Ultima Fat Away / HA Steinman / 20747 (21 May 2013), where the ASA refused to investigate a new aspect of advertising already arbitrated on. While the circumstances are slightly different now, the parallels are clear, and the Directorate should come to a similar conclusion.

The point was also made that a dispute has never been lodged against the name of the product, so it is improper for the complainant to include this as part of his complaint at this late stage.

Merits of the matter

It argued that the current website, when read as a whole, conveys a significantly different message, because it has endeavoured to bring its advertising in line with the guidelines given by the previous rulings and the Code, while still exercising its constitutional right to advertise and carry on its business.

Most notably:
The emphasis has moved away from diet and weight to exercise and metabolism;
It no longer claims “weight loss” but “weight regulation” through understanding your genetic predispositions;
The limitations of its approach to the issue if weight loss are clearly explained, and set out in such a way that they appear immediately before the price. It states: “While healthy nutrition may in certain cases result in weight loss, this depends on many factors. The DNA diet provides a tailor made nutrition and exercise programme. Healthy eating and exercise may result in weight loss, but this is not guaranteed”.
The complainant also concedes that the wording has changed and that a disclaimer has been added, which negate an argument of breach.

Given the above, and given the various assumptions made by the complainant, the respondent argued that the amended web page is fundamentally different from what was originally complained against and it is illustrative of an active and bona fides attempt to comply with the ruling.

ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.

The first issue to decide is whether or not the Directorate should entertain a breach complaint that comes roughly two years after a ruling had been made.

The respondent correctly noted that there is no prescribed period within which one has to lodge a breach allegation. Clause 3 of the Procedural Guide states, inter alia, that “The advertising complained against must be current and/or have been published within the last 90 days of lodging a complaint”, but this does not really apply in this instance, as the advertising (although alleged to have been in existence since 2012) is still active and displayed for all to see, which means it is still current.

The respondent’s reference to the Ultima Fat Away ruling is also somewhat misplaced, because this ruling dealt specifically with a new issue that the complainant wanted to introduce at a very late stage, whereas the current dispute revolves around whether or not the respondent has complied with the Directorate’s original rulings.

It is accepted that parties to any dispute would prefer to have some sort of finality on the matter. However, this presupposes that both parties comply with the decisions of the ASA.

If, hypothetically speaking, an advertiser were to simply ignore ASA rulings, hoping to reach a predetermined cut-off period of prescription, it would be unreasonable and prejudicial to consumers for the ASA to refuse to investigate allegations of non-compliance.

Clause 15.2 of the Procedural Guide states “Once a ruling has been given by the Directorate or ASA Committees, it shall be the responsibility of the complainant to monitor whether or not the ruling is adhered to and carried into effect”. It does not, however, convey any sense that disputes about the compliance should be lodged within a predetermined period, or risk being rejected.

Given the above, the Directorate does not agree that the complaint should be rejected simply because it had not been lodged earlier. The Directorate will not ignore the fact that the Respondent did not comply with the sanctions imposed in terms of the Code.

The essential question before the Directorate is whether or not the respondent’s amended website advertising is in breach of the original ruling. For this to be the case, the respondent would have to be making the same, or materially similar claims to those originally complained of, or at the very least be creating a misleading perception in the same or a similar manner as was originally the case.

The continued or the amended advertising is not in compliance with sanctions. On this basis the Directorate will continue to investigate the breach allegation.

Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made”. This implies that it is the duty of the recipient of an adverse ruling to ensure that it complies. A key consideration in such matters is what action the respondent took to ensure compliance.

The original ruling of 27 June 2011 specifically considered the respondent’s advertisement containing the following statement:

“Introducing one of the first products of its kind in the world, where science and nutrition meet, to create a scientifically proven diet and exercise plan; the DNA DIET.

Genetics plays a significant role in an individual’s ability to lose weight and their responsiveness to different diets. DNA DIET analyses 7 genes that impact metabolism and fat loss. These gene-based results provide personalised dietary changes, an eating plan to achieve optimal weight loss, and guidance as to the type and amount of exercise required, removing the guess work involved in choosing the best eating plan for you.

Order your DNA DIET test kit by visiting us on www.dnadiet.co.za, or book an appointment with one of our accredited dieticians.”

The Directorate noted that “The overall impression created by the advertisement is that the respondent has a scientific approach, and can isolate certain genetic factors for each individual tested that impact on metabolism and weight loss” and that “These results are then allegedly used to develop a personalised diet and exercise programme which is presumably guaranteed to work, given its specific application to the person tested”.

Similarly, when considering and ultimately rejecting the new substantiation, the Directorate’s ruling of 18 October 2011 noted that “Objectively speaking, this [advertising] communicates to the hypothetical reasonable person that the respondent is able to use its test to determine or isolate any customer’s genes and, by virtue of the results, create a customised and personal eating plan and even exercise plan to “remove the guess work” (i.e. provide certain weight loss results) …”

In the breach ruling dated 12 March 2012 the Directorate again noted that the amended advertising creates “The overall impression … that the respondent’s product / test is able to assist in developing a personalised diet that will work based on the fact that it relates specifically to the customer’s genetic makeup”.

It has therefore been made clear to the respondent where the concerns lie insofar as its advertising message is concerned.

The current website reads, inter alia, as follows:

“One of the first products of its kind in the world, DNA Diet tests for 13 genes that impact metabolism and exercise. The genes comprising the DNA Diet test have associations with body weight and body mass index, and all meet stringent criteria for utility in genetic screening tests. We provide a detailed report with recommendations that include dietary changes and an exercise programme …

Genes involved in regulation of energy expenditure, appetite, and fat metabolism, all play an important role in weight regulation. In fact 40% to 80% of the variance in body weight is due to genetic factors. This helps to explain why not everyone becomes obese even though people may be exposed to similar environments.

Genetics determines an individual’s susceptibility to obesity when exposed to an unfavourable environment. It also explores the way a person responds to diet and exercise”.

It also features the following text that alternates at the top of the relevant page:
“DNA Diet The genes comprising DNA Diet test have associations with body weight, body fat or BMI”,
“DNA Diet Genes involved in regulation of energy expenditure, appetite and metabolism, all play an important role in nutrition planning”, and
Genetics-Based Weight Loss One of the first products of its kind in the world, DNA Diet tests for eight genes that impact metabolism”.
Considering the page as a whole, and its likely impact on consumers (taking into account the surrounding circumstances as Clause 3.6 of Section I of the Code requires), the Directorate is satisfied that the overwhelming impression still created is that the respondent’s test allows customers to pinpoint which aspect of their genes predispose them to weight gain. More importantly, the impression created is that the respondent’s test and resulting “… detailed report with recommendations …” will remove all the guess work, allowing the customer to benefit from this knowledge and lose weight.

The newly added disclaimer reads:

“While healthy nutrition may in certain cases result in weight loss, this depends on many factors. The DNA diet provides a tailor made nutrition and exercise programme. Healthy eating and exercise may result in weight loss, but this is not guaranteed”.

Objectively speaking, this actually serves to emphasise the expectation that the respondent’s product will deliver results, because it communicates to a hypothetical reasonable person that healthy eating and exercise alone might not lead to weight loss, and that the respondent’s “tailor made nutrition and exercise programme” is likely required.

Given the above, the Directorate is satisfied that the respondent’s current website advertisement is in breach of the original ruling and therefore in breach of Clause 15 of the Procedural Guide.

The fact that the respondent has now been found to have breached the original ruling for a third time, the Directorate is satisfied that it needs to consider whether or not sanctions are warranted.

It should also be noted that the Directorate requested evidence to show that the respondent had obtained pre-publication advice from the ACA Advisory Services in accordance with the sanction imposed on 23 October 2012.

The respondent, however, was unable to supply this, noting that it could find proof of the quotation received, but nothing more. It argued that there was no complaint from Dr Steinman after the new website went live, and it was accordingly entitled to assume that Dr Steinman had abandoned this issue. It was prepared, “as a gesture of good faith” to “resubmit” the website material to the ACA, if the ASA were to rule that this was necessary.

Without labouring the obvious fact that the respondent appears to have disregarded a sanction imposed, the Directorate has some reservations over whether or not the mere “resubmission” of the website material would suffice, especially given that this is the third time that the respondent’s amended material was found wanting. It is, however, not appropriate to decide on the issue of sanctions without affording both parties an opportunity to address the Directorate on the issue.

In light of this, the complainant is afforded ten working days to comment on whether or not sanctions are appropriate at this time, and if so, which sanctions in accordance with Clause 14 of the Procedural Guide. After this, the respondent will be afforded an equal opportunity to address this issue, following which the Directorate will consider whether or not sanctions are warranted and if so which sanctions in terms of Clause 14 of the Procedural Guide.

The breach allegation is upheld, and the issue of sanctions will be finalised once the parties have had an opportunity to address the Directorate in that regard.

The respondent is again instructed to withdraw its advertising in accordance with the relevant rulings.

 

, , ,

No comments yet.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.