Mar. 31, 2005 – At a hearing on Tuesday, a Florida judge ordered diet company Atkins Nutritionals, Inc. to hand over documents pertaining to the firm’s marketing strategy. The order came as part of a lawsuit against the company, brought by a former dieter who claims the popular Atkins low-carbohydrate regimen caused him serious health problems.
While the plaintiff is asking for a relative pittance in monetary damages, the image of the controversial diet program may ride on the matter. However, the case up to this point has little to do with the merits or dangers of the diet itself, as lawyers for Atkins Nutritionals are preemptively arguing that the First Amendment protects the company from litigation over the contents of its books and website.
Warnings and Counter-Warnings
At the heart of the case is Jody Gorran, a 53 year-old Florida businessman, who says he followed the Atkins Nutritional Approach -- a diet named for its late author, encouraging adherents to consume as much fat as they want while avoiding carbohydrates -- from May 2001 to October 2003. While Gorran knew that prominent health groups were critical of high fat diets, he maintains that he was swayed by segments of the company’s literature dismissing such warnings.
The company has meanwhile insisted its literature is protected speech, even if it were to advise dangerous health practices and in spite of the advertisements for other Atkins products.
Gorran asserts that the book and website are commercial speech, meant to steer consumers toward buying Atkins products.
"One does not lose their first amendment protection just because you are trying to make a profit," Martin Reeder, an attorney for Atkins Nutritionals, told The NewStandard.
Gorran’s blood tests and a CT scan taken shortly before going on the diet showed that his cholesterol levels were normal and that he had a very low coronary vascular disease risk, according to the lawsuit. But while he was on the diet, his cholesterol levels went up, and after two years following the regimen, Gorran began experiencing some chest pain.
At that point, doctors found that some of the arteries leading to Gorran’s heart were partially restricted. He underwent surgery to reopen the vessels, and removed himself from the diet, on the advise of his doctor. Court documents filed on Gorran’s behalf state that his cholesterol levels returned to normal when he went off the Atkins diet.
With the help of the nonprofit organization Physicians Committee for Responsible Medicine, Gorran is suing Atkins Nutritionals for allegedly negligent misrepresentation causing personal injury and for alleged violations of Florida’s Deceptive and Unfair Trade Practices Act. He is asking for less than $15,000 in damages and requesting that the court require Atkins Nutritionals to include a health warning on all products and web pages.
Gorran asserts that Atkins’ arguments disclaiming the overwhelming body of evidence pointing to the dangers of a high-fat diet were convincing. For instance, one passage on the Atkins website states:
Atkins says the company is not "aware of any credible scientific studies finding that such health risks exist for those who follow the [Atkins Nutritional Approach]."
Of the many misconceptions that surround the Atkins Nutritional ApproachTM, perhaps the most widespread is the assumption that eating foods high in fat is a health risk. Not so -- in the absence of refined carbohydrates.
Fallacy: A nutritional approach that promotes a liberal intake of high-fat meats and dairy products will raise cholesterol levels, ultimately leading to heart disease.
Fact: It is true that every major health organization, as well as the U.S. government, endorses a low-fat diet in the unquestioned belief that fat causes heart disease. But are they right? A good deal of compelling evidence points in the opposite direction.
That passage continues to list a series of claims and scientific studies defending the main thesis behind the diet: that one can eat substantial quantities of high-fat, low-carbohydrate foods and actually improve one’s health.
In a motion for summary judgment filed with the court, Atkins Nutritionals countered that there is sufficient information in the Atkins literature about addressing high cholesterol. For instance, they point to one of the company’s hundreds of Frequently Asked Questions, in which a diligent searcher can find a warning that "if you’ve been following Atkins for some time and your cholesterol levels have not come down, something else is going on," but does not explicitly advise consulting a physician or discontinuing the diet in such a case.
The same page suggests dieters may need to take cholesterol-lowering nutrients and conveniently links consumers to a part of the website where they can purchase a copy of Dr. Atkins. Vita-Nutrient Solution.
Nearly every page on the Atkins Nutritionals website bears prominent links to catalog pages pitching the company’s various products.
The lawsuit against Atkins also cites passages from Dr. Atkins’ New Diet Revolution (1999 ed.), which Gorran says he read prior to going on the diet, specifically pointing out a passage addressing people who see a rise in their cholesterol levels.
I admit that there are individuals who are fat-sensitive and will develop a less favorable cholesterol level on a high-fat diet than on a low-fat diet," the book reads. "Intensive study of medical reports strongly suggests that fewer than one person in three falls into this category. (Although we find the number to be smaller than that.)
Dr. Atkins, the book’s author, went on to instruct dieters to have their complete lipid profile analyzed and compared to their baseline levels to determine if they are "fat-sensitive."
If you (and your doctor) are satisfied with your progress, there is, of course, no need to change. If the results are not to your liking, you may be a person who is fat-sensitive. So for the next interval, eat only the lean proteins… but do not increase your carbohydrate intake more than 5 grams. However, if you’re not happy on the low-fat version of the diet or get hungry or don’t feel as well on it, then don’t bother with it; go back to the regular Atkins diet that you enjoyed more. Since there can be so much benefit from the vita-nutrient supplements, it may be better to give them a chance so that you will not have to abandon your successful diet for the sake of a cholesterol reading.
The defense in this case itself highlights the next passage in the book:
But if you are happy with the new lower-fat version of the diet, still losing at a comfortable rate, and feeling just as well, stay with it and have another lipid profile drawn. If the results are better, good, but you still have one more task to perform. Go back to the original free-use-of-fat system long enough to have another profile. If it bounced back up from the previous one then you are fat-sensitive and should follow the fat-restricted variation of the diet.
Gorran and his lawyers note that the literature provided by Atkins Nutritionals does not suggest going off the diet if cholesterol levels continue to rise yet the dieter feels good and prefers the high-fat diet. But the company points to a disclaimer on the copyright pages of its books and on its website telling consumers to consult their doctors about the diet.
Testing the Limits of Commercial Speech
So far, however, the issues argued in the case have little to do with whether the company misrepresented its trademark diet, or whether adhering to the diet contributed to Gorran’s health problems. Instead, the case currently hinges on whether or not the book and website material that influenced Gorran’s eating choices are protected by the First Amendment.
In legal documents, attorneys for Atkins Nutritionals argue that the "[b]ook and website are, literally, contributions to the marketplace of ideas regarding weight loss and nutrition. As such, they are entitled to unqualified First Amendment protection."
During Tuesday’s hearing, Atkins counsel Reeder argued before the court that commercial speech is confined only to speech that directly proposes a commercial transaction, insisting that other speech -- even that which is intertwined with commercial speech -- enjoys protected status under the First Amendment. Therefore, Reeder argued, regardless of the plaintiff’s claims that the text of the book misrepresented the nutritional value of the diet, that speech is constitutionally protected.
While making it clear that he was not conceding that the Atkins diet contributed to Gorran’s health problems, Reeder told TNS that even if the court were to assume the diet was dangerous, the court should still find that the contents of Atkins book and website are protected free speech.
"The ideas and information in a generally circulated self-help book and an associated website are fully protected by the First Amendment even if they cause harm to some readers," wrote Reeder, in an earlier motion to dismiss the case that was denied by the court.
Nevertheless lawyers for Gorran assert that the book and website are commercial speech, meant to steer consumers toward buying Atkins products.
Gorran’s lead attorney, Dan Kinburn, told the court: "If you could always cloak any kind of deceptive scheme by having a few pages of health discussion or investment discussion or religious discussion, then... there would be no protection from fraud. There is no get-out-of-jail-free [by] putting in some noncommercial speech."
In an interview with The NewStandard, Kinburn reiterated that "both the book and the website are commercial speech; that is, it’s speech for the purpose of inducing people to buy Atkins products.
"You see it in the book to some extent," he said, "but you see it most clearly on the website. The website doesn’t exist as some kind of discussion forum for diet advice, it exists solely to sell the [diet-related products]."
Kinburn pointed out that nearly every page on the Atkins Nutritionals website bears prominent links to catalog pages pitching the company’s various products.
"Atkins is a merchant, and they are out hocking goods," Knburn continued. "They’re selling nutritional supplements, they’re selling power bars, they’re selling books, they’re selling anything that anyone will buy that revolves around this low-carb diet idea."
Kinburn acknowledges that the case against Atkins rests in large part on being able to prove that the book and website are commercial speech by showing that they serve as an integral part of Atkins Nutritionals’ overall marketing strategy. That is why the plaintiffs asked the court to compel the company to turn over documents relating to the company’s promotional program.
Atkins had been refusing to provide some of those documents on the grounds that they were irrelevant to the case because, in the company’s opinion, the judge should be able to make a decision on the free speech issue without reading about its approach to marketing.
The judge ordered Atkins to hand over documents pertaining to the company’s marketing strategy, but declined the plaintiff’s request for disclosure of the late Dr. Robert C. Atkins’ personal medical records, which some Atkins critics, including the Physicians Committee for Responsible Medicine, have suggested might show the company lied about the circumstances of the late doctor’s own death in order to protect its product line.
Kinburn said the plaintiffs expect that some of the documents to be released will "show that the corporation engaged in deceptive commercial speech not protected by the First Amendment." If his team can convince the court that the Atkins materials constitute commercial speech, they will then have to prove that the company knew about the dangers of the diet but failed to warn consumers.
Atkins denies having such knowledge. A press statement issued by the company last week states, "Atkins [is not] aware of any credible scientific studies finding that such health risks exist for those who follow the [Atkins Nutritional Approach]."
Cynthia Williams, a law professor at the University of Illinois College of Law, said this case fits into a larger context of corporations claiming First Amendment protections.
"There are starting to be cases bubbling up in various contexts, raising First Amendment protection for companies for their statements about their products, about their stocks, about their company," she said. "And I think that ultimately it could be very significant if, in general, the courts start to adopt a broad view of protected... speech issued by... people within companies."
Williams continued, "It’s very important that when companies make statements -- about their products, about their services, about the methods of production of their products, about their environmental practices, about a whole range of social and environmental issues… -- that companies have the proper incentives to speak accurately because consumers and investors are making decisions on that basis."
The next hearing in the case is scheduled for this summer.
