Thursday, January 4, 2007
A federal district court has dismissed a plaintiff's claim against Atkins Nutritrionals and the representative of the estate of the late Dr. Robert Atkins that the Atkins Diet caused health problems directly related to his use of the Atkins diet. Jody Gorran had sued for "products liability, negligent misreprentation, and deceptive conduct under Florida law. Gorran conten[ded] that the Diet is dangerous because it calls for a high-fat, high-protien, low-carbohydrate diet that increases the risk of coronary heart disease, diabetes, strokes, and certain types of cancer. He allege[d] that products sold by defendants--books, food products, and nutritional supplements--are "defectives and unreasonably dangerous."" Before going on the diet, Gorran's cholesterol was at 146. After just two months on the Diet it was measured at 230. He continued on the Diet, then experienced "severe chest pain", then had to undergo an angioplasty. He then decided to sue the defendants, deciding that the deterioration in his health was a direct result of his adherence to the Diet. The defendants asked the court to dismiss pursuant to Rule 12(c) of the FRCP, which the judge granted. "Defendants' books and food products are not defective or dangerous products within the meaning of products liability law. Pastrami and cheesecake--large amounts of which Gorran admitted consumed--may present risks, but these are risks of which consumers are aware.The average consumer surely anticipates that these and other high-fat or high-protein foods may increase cholesterol levels and the risk of heart disease. Moreover, the Diet consists of advice and ideas. The concepts may be controversial and the subject of criticism, but they are protected by the First Amendment."
The judge notes that the book "contains a disclaimer on the copyright page, which states that the advice offered in the Book is not intended to be a substitute for the advice and counsel of the dieter's personal physician." Applying Florida products liability law, he states, "...Gorran has not alleged any facts that would lead to the conclusion that the food products sold by defendants were defective as defined by products liability law; there is no allegation that the food products were not in a condition anticipated by the average consumer. The average consumer surely anticipated that a high-fat, high-protein diet would increase both cholesterol levels and the risk of heart disease."
"Gorran's products liability claim is also deficient to the extent it is based on the Book, for the Book is not a "product."...[A] defect in a book's tangible qualities --the cover, pages, and binding--could potentially give rise to a products liability action....The intangible qualities of a book, however--the ideas and expressions--are not products for purposes of products liaiblity law...."
"To state a claim for negligent mispresentation under Florida law, a plaintiff must allege that: (1) the defendant made a misrepresentation of material fact; (2) the defendant was ngeligent in making the statement because he should have known the representation was false; (3) the defendant intended to induce the plaintiff to rely on the misrepresentation; and (4) injury resulted to the plaintiff by his justifiable reliance on the misreprentation....Gorran alleges that defendants misrepresented the risks of the Diet....Defendants argue that Gorran has failed to allege that they owed him a duty of care. Gorran responds that the majority of Florida courts do not require a plaintiff to allege a duty of care....Gorran's argument fails....Negligent misrepresentation claims and other actions based on a defendant's allegedly false speech must be reconciled with the First Amendment....Defendants argue that the content in the Book and on the Website is noncommercial speech fully protected under the First Amendment....Gorran...contends that the Book and the Website serve as advertisments....I hold that the Book is noncommercial speech....The Book is not an advertisement...;rather, it is a guide to leading a controlled carbohydrate lifestyle....ANI maintains that the Website content is "purely opinion"....Applying the factors set forth in Proctor and Gamble, I hold that the Website contains both commercial and noncommercial speech. Upon navigating to the Website, the user is taken to a page that prominently displays the ANI "Atkins Advantage" brand name. By clicking on "Products" on the main menu bar, the user has the option to learn about the "superior nutrition and taste" of the Atkins Advantage product line....These aspects...clearly propose commercial transactions....The Website also, however contains a wealth of information on how to follow the Diet and recommendations for optimizing health and nutrition....For the foregoing reasons, defendants' motions for judgment on the pleadings are granted, and the complaint is dismissed in its entirety, with prejudice and costs but without fees."
Read the entire opinion here.