Case Notes

The court ruled that the plaintiff's suit must be dismissed because neither the Atkins diet book nor the food products are defective or dangerous products under product liability law. It observed that '[p]astrami and cheesecake ' large amounts of which [plaintiff] admittedly consumes ' may present risks, but these are risks of which consumers are aware.' Noting that the Atkins Diet consists of advice and ideas, the court, referring to the Pennsylvania action Smith v. Linn, deemed the diet's concepts ' albeit controversial and subject to criticism ' protected under the First Amendment as non-commercial speech.

In dismissing plaintiff's claim under Florida's Deceptive and Unfair Trade Practices Act, the court noted that plaintiff failed to allege sufficient facts to show that defendants' alleged unfair or deceptive practices diminished the value of the products he purchased.

Diet Protected As Non-Commercial Speech

The Atkins^' Diet is protected non-commercial speech under the First Amendment; moreover, the plaintiff failed to prove deceptive or unfair
trade practices. Gorran v. Atkins Nutritionals Inc., 05 Civ. 10679, S.D.N.Y., Dec. 11, 2006.

The plaintiff, 53-year-old Jody Gorran sued the company that promotes the Atkins Diet, and the estate of its developer, for product liability, misrepresentation, and deceptive conduct, seeking money damages and an injunction requiring defendants to put warning labels on all Atkins products and on its official Web site. He claimed that the diet increased his cholesterol level to the point where he needed heart surgery. The Atkins diet is a well-known approach that advocates consuming high-protein, low-carbohydrate foods. The company's Web site sells products that follow the plan.

The court ruled that the plaintiff's suit must be dismissed because neither the Atkins diet book nor the food products are defective or dangerous products under product liability law. It observed that '[p]astrami and cheesecake ' large amounts of which [plaintiff] admittedly consumes ' may present risks, but these are risks of which consumers are aware.' Noting that the Atkins Diet consists of advice and ideas, the court, referring to the Pennsylvania action Smith v. Linn, deemed the diet's concepts ' albeit controversial and subject to criticism ' protected under the First Amendment as non-commercial speech.

In dismissing plaintiff's claim under Florida's Deceptive and Unfair Trade Practices Act, the court noted that plaintiff failed to allege sufficient facts to show that defendants' alleged unfair or deceptive practices diminished the value of the products he purchased.