DNA Diet breach of ASA ruling

Posted 13 March 2012

In essence, a consumer complained that the DNA Diet was still making claims for efficacy in spite of no scientific proof to support the claims being made, and in spite of a previous ASA ruling against the product. 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


12 Mar 2012

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5988

BACKGROUND
In DNA Diet / H A Steinman / 17153 (27 June 2011) the Directorate ruled that the respondent’s claims in the advertisement were currently 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The respondent was instructed to withdrawn the advertisement in accordance with the findings within immediate effect and within the deadlines stipulated in Clause 15.3 of the Procedural Guide.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 18 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.

SUBSEQUENT TO THE RULING
On 23 January 2012, the complainant lodged a breach allegation against the respondent’s website http://www.dnadiet.co.za. It was 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 the ASA rejected its position for want of appropriate verification. Given this, and in accordance with what it believed to be the thrust of the ASAs ruling, it deleted all references in its advertising material, including its website, to the words "scientifically proven" and to similar wording which suggested scientific support for its products. It reiterated, however, that there is significant scientific proof in this regard and drew the Directorate’s attention to documentation already in its possession.

The respondent further argued that at no time has DNAlysis suggested that its personalised diet and exercise program is "guaranteed to work". It submitted annexures to support its contention from medical practitioners who have been using the DNA Diet.

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

The ASA’s approach in considering evidence and advertising has been appropriately outlined in the previous rulings and is clear from the provisions of the Code. The respondent has, to date, not attempted to submit any new substantiation for any direct or implied efficacy claims made. The Directorate is therefore only tasked with determining whether the respondent is in breach of the Directorate ruling dated 14 December 2009. It should also be noted that the respondent’s reliance on a handful of practitioners who have “seen results” are of no consequence for the purpose for this decision.

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.

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 previous 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.”

The complainant submitted that the respondent’s website continued to make claims pertaining to the efficacy of this test in predicting a suitable diet for weight loss. In the original ruling, the Directorate pointed out 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. 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”

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.

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

Given that the respondent has, at all times, taken care to take the Directorate into its confidence, as well as the fact that the respondent has no apparent history with the ASA (other than this dispute), the Directorate does not believe sanctions are warranted at this time. However, the respondent is cautioned that the Directorate may well change its approach on this issue, should further justified breach allegations (or new complaints) be received.

The respondent is again instructed to permanently remove any claims that create the same overwhelming impression. The breach allegation is therefore upheld, with no additional sanctions imposed on the respondent other than the immediate withdrawal of the claims.

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