Tired of eating the same food as everybody else? Nutrigenetics might be what you are looking for.

5 April, 2019
by: Cripps Pemberton Greenish


Everyone is different. Some people can run faster than others, some people are taller than others, some people have excellent coordination, and some people….digest carbohydrates faster than others?


Personalised fitness advice has been around for some time now and entry to the market of Internet of Things devices (such as Fitbits and Garmins) has allowed people to become much more aware of their own health and fitness statistics.


Fitness and nutrition go hand in hand and many see DNA personalised nutrition as the next step in the “wellness revolution”. “Nutrigenetics” is one part of this personalisation. This is the term given to the effect of genetic variation on dietary response.


There are a number of companies that offer DNA analysis and nutritional advice based on this analysis. Customers are asked to provide the company with a DNA sample in the form of a blood test or cheek swab. The company then analyses the DNA to determine particular genes the individual might have and provides a nutrition plan and lifestyle recommendations based those genes.


Concerns have been raised by some around the effectiveness of the recommendations, but these aside, nutrigenetics also raises some interesting legal issues, particularly around data protection and advertising.


Data Protection

DNA is, arguably, an individual’s most private personal data. It goes to the root of what makes us, us. Whilst the impact on our everyday lives of the mapping of the human genome is still to be realised, many businesses see huge potential to use DNA to create truly “personalised” products and treatments.


But DNA comes firmly within the definition of special-category data in the General Data Protection Regulations 2016. Companies processing special-category data will need to have a lawful basis for processing it under both Article 6 and Article 9. More importantly than this, companies will need to ensure they have done a data protection impact assessment due to (amongst others) the existence of the special-category data. How can the company reduce the risk of a data breach when it holds such sensitive information. For example, does the company need to keep the entire DNA code of the individual or only the genes which relate to its product?


Advertising Considerations

Adverts are subject to rules or ‘standards’. Conceptually, this is very simple – as long as your advertisement is legal, decent, truthful and honest, you won’t have anything to worry about.


There are two advertising codes of practice in the UK: the Broadcast Committee of Advertising Practice (BCAP) for broadcast advertising and the Committee of Advertising Practice (CAP) for almost everything else. Both are enforced by the Advertising Standards Authority (ASA).


The CAP Code aims to protect consumers by ensuring that when businesses advertise, they do so in a responsible and honest manner and do not make false claims about their products. There are a number of rules in the CAP Code but of particular note for Nutrigenetics products are: 3 Misleading advertising; 12 Weight control and slimming; and 15 Food, food supplements and associated health or nutrition claims.  Remember, only claims listed as “authorised” on the EU Register may be used in promotions, and the  ASA has made it clear that if a company makes any health claims about their product, they should be able to back that up with documentary evidence.


Even big names such as Nestle have been keen to look into this potential growth area, in part to counter the rising challenge to larger more established businesses who are now less able to rely on traditional brand marketing to a growing group of new consumers who increasingly seek out providers they consider “new” and “innovative”.   However, this nutrition genomics is still a new area and companies wishing to get in on the action need to ensure they get the legal side right.