The 23andMe Terms of Service contractually binds its users to the following clause:

The Services Content is not to be used, and is not intended to be used, by you or any other person to diagnose, cure, treat, mitigate, or prevent a disease or other impairment or condition, or to ascertain your health.

However, this contract is imposed by 23andMe to the public in bad faith because 23andMe actively promotes its users to violate this clause.

For example: the 23andMe test includes a report about the blood thinning drug Warfarin (sample report) which includes medical advice about Warfarin dosing based on test results. In this example, the Twitter user “attilacsordas” electronically messaged the company 23andMe:

@23andMe sent my Warfarin Sensitivity Report to a cardiologist to enlighten her,if most @23andMe users could do the same: a nice campaign…

and

@23andMe 1st I showed her the Warfarin page on the iPhone,she was really surprised that such service exists,then sent her the printed report

The following messages indicate a violation of 23andMe user contract: “The Services Content is not to be used, and is not intended to be used, by you or any other person to diagnose, cure, treat, mitigate, or prevent a disease or other impairment or condition, or to ascertain your health.” In this example, the user “attilacsordas” allegedly coerced a cardiologist into jointly violating the 23andMe contract when he sent the report to “enlighten her” which presumably means “to be used in warfarin dosing.” The use of a 23andMe report for Warfarin dosing by a cardiologist is a clear example of to “diagnose, cure, treat, mitigate, or prevent a disease or other impairment or condition, or to ascertain your health.”

23andMe responded to this message by endorsing and broadcasting it to its users and to the public as a “retweet” or “RT” on March 17th, 2010 as follows:

RT @attilacsordas sent my Warfarin Report to a cardiologist to enlighten her, if most @23andMe users could do the same: a nice campaign…

Thus, I allege that 23andMe actively promotes violation of Section 3 in the 23andMe Terms of Service to its contractually bound users and to the general public.

Commentary

What is the legal precedence for a contract imposed upon the public in bad faith for commercial advantages with material liability to public health in order to avoid the regulations of drugs and disease control in the United States? Internationally? Per state? Per… provence?

Maybe Dan Vorhaus could advise.

I’d also be interested to learn about the liability of the lawyers contracted with 23andMe regarding the composition and approval of this contract and related company policy.

23andMe Terms of Service, Section 3

Description of What the Services Are and Are Not: 23andMe Service Is For Research and Educational Use Only. We Do Not Provide Medical Advice, And The Services Cannot Be Used For Health Ascertainment or Disease Purposes

The genetic information provided by 23andMe is for research and educational use only. This means two things. First, the genetic information you receive from 23andMe is based on scientific research, and cannot be relied upon at this point for diagnostic purposes. Genetic discoveries that we report have not, for the most part, been clinically validated, and the technology the laboratory uses the same technology used by the research community has also not yet been validated for clinical utility. Second, by your participation in the 23andMe service you contribute your genetic information to our research effort to study various aspects of human genetics in an attempt to better understand the human genome. In addition our service enables you to contribute other personal information towards research as well. As a result, our Services, including but not limited to text, graphics, images, information relating to (a) My Health and Traits, including the 23andMe Odds Calculator, technical reports, MD’s Perspectives, research timelines; (b) Genome Labs, including genetic comparisons, family inheritance and your raw data; (c) Ancestry, including maternal ancestry, paternal ancestry, global similarity, and (d) other material contained in our Services (“Services Content”) are for informational and educational purposes only. The Services Content is not to be, and is not intended to be, used for any diagnostic purpose and is not a substitute for professional medical advice. The Services Content is not to be used, and is not intended to be used, by you or any other person to diagnose, cure, treat, mitigate, or prevent a disease or other impairment or condition, or to ascertain your health. You should always seek the advice of your physician or other appropriate healthcare professional with any questions you may have regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition or impairment or the status of your health.

23andMe does not recommend or endorse any specific course of action, resources, tests, physicians, drugs, biologics, medical devices or other products, procedures, opinions, or other information that may be mentioned on our website. As explained on our website, 23andMe believes that (a) genetics is only part of the picture of any individual’s state of being, (b) the state of the understanding of genetic information is rapidly evolving and at any given time we only comprehend part of the picture of the role of genetics, (c) only a trained healthcare professional can assess your current state of health or disease, taking into account many factors, including your current symptoms, if any, and (d) our testing service is not licensed by the relevant state and federal authorities for genetic testing conducted for health and disease-related purposes. Reliance on any information provided by 23andMe, 23andMe employees, others appearing on our website at the invitation of 23andMe, or other visitors to our website is solely at your own risk.