Atkins gets full First Amendment protection

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A lawsuit decided last month by a federal court in Manhattan rejected the claim of a fed-up dieter who blamed the diet he followed for causing him heart problems and who sued on claims including false and deceptive advertising.

The decision illustrates an important legal distinction that marketers need to consider: the difference between fully protected free speech and commercial speech, the latter of which governments can and do heavily regulate, and how these differences can play out when both types of speech are in a marketing vehicle.

The Atkins lawsuit. Plaintiff Jody Gorran went on the popular low-carbohydrate Atkins Diet in spring 2001. Six months earlier, his cholesterol level was only 146 and he had a very low risk of heart disease. After just two months on the diet, his cholesterol shot up to 230.

Though the published court papers do not say, Mr. Gorran presumably lost weight because he stayed on the diet for more than two years. But in October 2003, he experienced severe chest pain and wound up having angioplasty to unclog one of his coronary arteries and also a stent placed into the artery to help keep it open.

Mr. Gorran sued Atkins Nutritionals Inc. in 2004, alleging misrepresentation and unfair trade practices. He sued under the type of statute that state attorneys general use to prosecute false advertising claims. Mr. Gorran argued that if the company's book and related Web site had accurately warned him about the Atkins Diet's health risks, he would not have followed it.

Judge Denny Chin decided the case. Though the court found other problems with the misrepresentation claim, one of the major parts of the decision involved the freedom of speech protections afforded the Atkins Diet book and Web site.

First Amendment analysis. When words or ideas receive full First Amendment protection, the U.S. government, including the court system, cannot prevent or unnecessarily burden the expression of such speech even where such speech may be false or deceptive. But commercial speech can be restricted and receives lesser protection under the First Amendment, particularly when the issue is the truth or falsity of the challenged statements.

Thus, advertising can be (and is) heavily regulated. Given this distinction, the court first considered whether the Atkins book and site should be considered fully protected or commercial speech and what type of protection was appropriate for such speech.

In finding that the Atkins book was fully protected free speech, the court used this test, which is basically the one used by other federal courts: (1) whether the challenged communication is an ad, (2) whether the communication refers to a specific product or service and (3) whether the speaker has an economic motivation for the speech.

The court found that the book was fully protected speech because it did more than propose buying the Atkins Diet line of products (i.e., did more than propose a commercial transaction). Rather, the court found that the book was a guide promoting a carbohydrate-controlled lifestyle, discussing how the diet works, why weight loss occurs, general nutritional guidelines and disease prevention.

Though the book contained several references to Atkins products and services that are sold for a profit, the court found that the mere fact that an underlying economic motive existed in selling the book and services did not turn the speech into commercial speech. Once speech is found to be fully protected, a court will require a compelling reason to regulate or discourage it.

The court found that the Web site, which promoted the diet and related products and services, contained commercial and noncommercial speech. Though the site sold products under the Atkins brand, it also contained information on how to follow the diet and recommendations for optimizing health and nutrition.

The court found that though the site included commercial content, Mr. Gorran's lawsuit could not proceed because he could not show that he relied on the commercial portion of the site (i.e., the part that sold Atkins products as opposed to the part that explained the Atkins diet).

The lesson from this decision is that though the law remains clear that false advertising is unprotected commercial speech, neither the government nor consumers should be able to challenge one's ideas, even if they are sold as a book with ancillary products.

Here, the court took a careful look at the ideas that the consumer claimed were deceptive, and because the challenged speech was not based on a particular proposed commercial transaction, it refused to place restraints on the Atkins Diet's non-commercial speech.
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