DNA Diet – ASA breach ruling

Posted 16 July 2012 

A consumer complained that the DNA Diet was continuing to make unsubstantiated claims for the product on their website: http://www.dnadiet.co.za

The ASA agreed.

DNA Diet / HA Steinman / 17153
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Dnalysis (Pty) Ltd Respondent

16 Jul 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=6168
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 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,

“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.”

This ruling specifically pointed to the requirement for independent and credible verification of all claims that are capable of objective proof. The Directorate noted:

“There is 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. In addition, the respondent did not submit any information as to why the Directorate should accept that any of the documentation submitted emanated from, or was evaluated and confirmed by an independent, credible, expert in the relevant field”.

The respondent was instructed to withdrawn the advertisement in accordance with the findings within immediate effect and within the deadlines stipulated in Clause 15.3 of the Procedural Guide.

Subsequent to this, the respondent filed new submissions, hoping that it would satisfy the requirements of Clause 4.1 of Section II of the Code. In its ruling distributed to parties on 28 October 2011, the Directorate noted as follows:

“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). The question is therefore whether Dr Grimaldi provides such unequivocal verification …

… it would appear that Dr Grimaldi has an indirect commercial interest in the outcome of this matter, or at least in providing support for the respondent’s commercial activities and advertising claims.

As such, he does not qualify as an ‘independent’ expert, meaning that the Directorate is precluded from accepting his viewpoint at this time”.

On this basis, the new substantiation was not accepted, and the Directorate confirmed that the original ruling remained binding.

On 12 March 2012 the respondent was found to be in breach of the previous Directorate ruling. No sanctions were imposed on the respondent. At that stage, the Directorate pointed out that it was “… satisfied that the current wording is substantially similar to the wording considered in the previous ruling to an extent that would justify a finding of breach. The overall impression remains 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”.

The breach allegation was upheld, but the Directorate did not impose sanctions on the respondent other than instructing it to “permanently remove any claims that create the same overwhelming impression”.

SUBSEQUENT TO THE RULING
On 16 May 2012, the complainant lodged a breach allegation against the respondent’s website http://www.dnadiet.co.za. He submitted that the product continued to make claims on its website pertaining to the efficacy of this test in predicting a suitable diet for weight loss.

The complainant added that this appears to be a breach of the previous ASA ruling and requested the ASA to impose the severest sanctions.

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
Attorneys Edward Nathan Sonnenbergs, on behalf of the respondent, submitted, inter alia, that it immediately, following the ASAs last ruling, changed its website so as to comply with the ruling. It is of bona fide belief that it is not in breach of any ASA ruling. It argued that no guidance was given as to how to deal with broad concepts such as “overall impression”. It amended its website in a manner that, to the best of its belief, accorded with the ruling. It sought guidance from the ACA in this regard but no guidance was forthcoming.

The respondent further questioned the complainant’s motives for persisting with the complaints.

Notwithstanding the fact that it disagrees with the ASAs rulings, and notwithstanding the fact that the ASA Code is not binding on it, has made every effort to comply. It withdrew the original offending advertisement and amended its website in a manner which, to the best of its belief and understanding of the rulings, complied with the rulings. Details of the amendments were also discussed, and it pointed out that no claims are being made that the product offers guaranteed results or that it was scientifically proven.

The current complaints indicate that the complainant has misunderstood the original ruling, and is now morphing the complaint into something new and nebulous.There is nothing on its website which is in any way misleading or which constitutes a violation of any ASA ruling.

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

Clause 3.6 of Section I of the Code states “When objections in respect of advertisements that were amended resulting from an ASA ruling are received, both the original and amended version will be taken into consideration”.

The essential question before the Directorate is whether or not the respondent’s advertisement 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.

The original ruling 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.”

In rejecting the respondent’s submissions, the Directorate specifically noted that:

“There is 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”.

When the respondent attempted to submit new substantiation (refer ruling issued on 28 October 2011), the Directorate specifically noted that “Objectively speaking, this 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)”.

When considering the first breach allegation (refer the ruling dated 12 March 2012), the Directorate again noted that “The overall impression remains 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”.

The Directorate is therefore satisfied that it has been patently clear in its explanation of what the concerns are, and what the respondent is expected to substantiate. It therefore rejects the respondent’s arguments that the ruling and findings were vague.

In addition to this, the breach ruling dated 12 March 2012 specifically noted as follows:

“The amended webpage states, inter alia, the following:

‘DNA Diet
DNA Diet incorporates essential genetic information which informs diet and exercise recommendations and weight loss …

Achieve your optimal weight with DNA Diet …

One of the first products of its kind in the world. DNA Diet tests for 8 genes that impact metabolism and fat loss. The results provide individual recommendations that include gene – based personalised dietary changes, an eating plan to achieve optimal weight loss, and guidance as to the type and amount of exercise required …

Knowing more about an individual’s genetic make-up can go a long way towards personalising and optimising diet and exercise advice. DNA Diet incorporates essential genetic information as a precursor to making diet and exercise recommendations for weight loss. The genes comprising the DNA Diet test have associations with body weight, body mass index, or body fat, and all meet stringent criteria for utility in genetic screening tests.

The DNA Diet test panel assists health practitioners, dietitians and consumers by guiding the development of diet and exercise programmes based on genetic differences in nutrient metabolism and body fat regulation’.

The Directorate is satisfied that the current wording is substantially similar to the wording considered in the previous ruling to an extent that would justify a finding of breach. The overall impression remains 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”.

The current webpage (see http://www.dnadiet.co.za/weight-loss-health-products.aspx) still contained virtually the same wording. It reads:

“One of the first products of its kind in the world, DNA Diet tests for 8 genes that impact metabolism and fat loss. The genes comprising the DNA Diet test have associations with body weight, body mass index, or body fat, and all meet stringent criteria for utility in genetic screening tests. The results provide recommendations that include dietary changes and guidance as to the type and amount of exercise required”.

This still creates an impression that the respondent is able to devise dietary and lifestyle recommendations based on one’s genetic make-up, something which the respondent has still not substantiated. The fact that no reference is made to “scientifically proven” or “guaranteed” or words to that effect make no material difference, because the likely takeout remains the same.

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.

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. 

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