There is such a thing as a (carb-)free lunch: Atkins wins against cardiac patient

Gorran v. Atkins Nutritionals, Inc., 05 Civ. 10679 (DC) (S.D.N.Y. Dec. 11, 2006): Jody Gorran was in good health, with low cholesterol and no cardiac problems, until he started the Atkins diet, allegedly in reliance on defendant’s representations that a high-fat, low-carb diet posed no cardiac risks. Defendant’s website, among other things, stated that eating high-fat foods posed no health risk in the absence of carbohydrates and that medical advice to the contrary was disproved by the evidence. After two and a half years on the Diet, his cholesterol was through the roof, he began experiencing chest pains, and he had to have an angioplasty, involving a stent inserted to keep an artery open. He sued, alleging products liability, negligent misrepresentation, and false advertising under Florida law.

Judge Chin dismissed Gorran’s claims under Rule 12(c), holding that food like cheesecake is not unreasonably dangerous for products liability purposes. In addition, statements about the Atkins diet’s health benefits and cardiac safety in the Atkins book and on the Atkins website were noncommercial speech, even though they also served to sell Atkins-branded food products (of which Gorran bought approximately $25 worth). The court ruled that the website contained a mix of commercial and noncommercial speech. Only information specific to the “superior nutrition and taste” of the Atkins products available for sale, not the website’s general advice on how to follow the diet or recommendations for optimizing health, was commercial speech. This is a tenuous distinction, though it may have worked in the present case. What happens when product labels or webpages make broad health claims, like an ad for Crisco stating that trans fats have been scientifically shown to improve health? Conversely, what if one page on a site touts the health benefits of supplement X, and then a separate page offers the supplement for sale? That’s not far different from what occurred here, but I doubt the court wanted to reward formal manipulation with a finding that the first page is noncommercial speech.

I’m also uncomfortable with the court’s reasoning that defendants’ conduct wasn’t “unfair or deceptive,” apparently because it was protected by the First Amendment. It could well be unfair and deceptive though still protected by the First Amendment; that’s a big part of what the First Amendment, in its modern incarnation, does. From all the evidence before the court at that stage, defendant is profiting by misleading people with a sweetly (and fatty) seductive story – eat as much as you want of tasty foods and lose weight, with no health risk. If this is deceptive, defendant is behaving wrongfully, even if its conduct isn’t actionable. (The court only referred to its earlier First Amendment determination, but it may also have been considering its holding that cheesecake isn’t unreasonably dangerous as a matter of law for products liability purposes – in which case I think it failed to take into account the ways in which Atkins deliberately changed the information environment, attempting to convince people that their previous understanding of how much cheesecake one could reasonably eat was too cautious.) The court’s alternative reasoning – that Florida law only considers direct economic damages, such as the price of the Atkins book, while Gorran is asserting personal injury damages – is a much firmer basis for its ruling.