I Was Given Bad Advice About Fitness or Nutrition, What Can I Do?

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I recently spoke to a friend, who is a personal trainer, about diet and exercise. Her advice, while well-intentioned, was wildly off-base from a scientific standpoint. This got me to wondering, what if I had taken her advice to heart and suffered a loss? Would the consequences of choices I made about diet and exercise be mine alone or would she have some liability for her inaccurate assertions?

Before I go on, I suppose a bit of back story is in order. I met my friend for lunch at a popular sandwich chain. I ordered a chicken sandwich on flat bread, and loaded with lots of vegetables. That seemed like a pretty sensible meal to me. My friend, on the other hand, opted to drink a protein shake she mixed up from powder and bottled water. When I asked why she did not want to eat anything, she told me that everything I was eating was genetically modified and, as a result, it was “not really food.” She said that my body did not know what to do with genetically modified food, so all it would do is make me fat and give me cancer. Meanwhile, her highly processed and exceptionally refined protein powder was not even a blip on her radar. Ironically, she had just moments before argued that a human's genetic makeup had little to do with their ability to gain weight or lose fat. Obviously, her grasp of biology and genetics was somewhat misinformed.

As some readers will know, I am also a contributing writer for a technology blog, and pride myself on keeping up on science and technology. I have read about the debate over genetically modified food, and it is tragic that misinformation about the effects of genetic modification has actually led some third world countries to decline shipments of food their starving citizens needed because these nations believed the genetic modifications made the food dangerous. The fact is virtually everything we eat had been “genetically modified” through selective breeding for thousands of years before we began to understand the actual science of what this process entailed. Modern genetic modification may rely on slightly different techniques to more precisely control the process, but the effect is basically the same. The result is a product that might be larger, more resistant to pests or disease, or that produces a higher yield of edible content. It is still organic, still quite edible (or it would not pass FDA scrutiny), and usually just as nutritious (and sometimes more so) as the unmodified version. Indeed, many foods marketed as “organic” are actually more dangerous and will spoil faster because of the lack of genetic modification and because of the types of organic matter used for fertilization of these crops.

Given her resolve and the fact that others have actually been paying her for advice, I realized that she could really do some damage. Granted, most of the time this would be purely in the form of paying too much for food that will likely spoil faster, but in a few occasions it could also have negative health impacts. For example, someone could become sick from not properly preparing organic food, such as thoroughly washing it. But, since she does not hold herself out as having any special certifications other than a personal trainer's certification, what is the extent of her potential liability?

Unfortunately, it is probably pretty close to nil. The trainer would probably not be considered a fiduciary of the plaintiff, even though she may have a little more influence over the trainee than someone who is not a trainer. Similarly, she did not force the hypothetical client to buy organic food. She also would not directly gain from the purchase, as she was not selling the organic food or receiving a royalty, so she would not be considered guilty of false or misleading advertising (indeed, she is probably a victim of such misinformation, herself). While her representations were negligent in one sense, it is unlikely that anyone will construe them as the proximate cause of the trainee's injury or loss. This is because the trainee's own decision intervened, meaning he or she had an opportunity to investigate the trainer's claims and make the decision based on his or her own discretion. So, my trainer friend will probably continue to escape liability for her wildly inaccurate and poorly researched advice.

This is a little troubling, but it is precisely this type of uninformed advice-giving that has largely influenced the fitness and supplement industry for years. On the other hand, it is a good reminder that adults are required to act diligently, including (perhaps especially) when it comes to their own health and nutrition decisions. While I have often noted that anyone can sue anybody for anything at any time, winning is a different matter. In our often overly litigious society, it is easy to assume that one can always point the finger at another for what amounts to their own bad decisions, and in some cases, this is true. Indeed, even in this situation it would be possible to attempt a claim for negligent misrepresentation, simple negligence, or some other theory of recovery. However, the chances of success on such claims should the case progress to a final ruling are likely fairly slim.

The moral of the story: do not simply take advice at face value, especially if it affects your health, wealth, or well-being. Not only will it help you avoid a lot of headaches, you may have a legal obligation to do so. And, as always, if you need additional guidance, contact a local attorney to find out what your obligations really might be.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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