A Suit Based on Alleged Health Effects of the Atkins Diet:
A Free Speech Issue Disguised as a Junk Food Issue

By ANTHONY J. SEBOK & BENJAMIN ZIPURSKY

Monday, Jun. 14, 2004

Two weeks ago, a Florida businessman named Jody Gorran sued Atkins Nutritionals, Inc. and the estate of Dr. Robert C. Atkins for injuries allegedly caused to Mr. Gorran because he followed the "Atkins diet."

Mr. Gorran followed the Atkins diet for five months, eating (according to his complaint) "large amounts of pastrami and cheesecake." He alleges that his cholesterol went up, that he suffered extreme chest pain, and that he ultimately had to receive a cardiac catherization.

In some ways, a suit against the Atkins diet seemed inevitable -- given the litigious nature of Americans and the fantastic, strangely counterintuitive promise of the high-fat theory underlying the Atkins program.

Of course, Mr. Gorran's heart problems may have nothing to do with his decision to begin a pastrami-and-cheesecake diet when he was 52 years old. But his suit raises some very interesting questions about whether tort law should play a role in policing diet advice.

As we shall explain below, while at first glance the Atkins lawsuit looks like a knock-off of the lawsuits against McDonalds, it really has more to do with free speech than junk food.

Suing on a Book, Not Any Other Type of Product

The key thing to note about the suit brought by Mr. Gorran is that he is suing Atkins Nutritionals and the Atkins estate (to which we will refer, collectively, as "Atkins") because they were the publisher of a book, not because they manufactured and sold certain food items. (Although the complaint does note that Atkins sells a cheesecake under its brand that is "Atkins friendly," the book is the subject matter of the lawsuit.)

In other words, the instrument of injury in this lawsuit is an idea--Dr. Atkins' idea--and the book is just a device to convey that idea.

The distinction between Atkins' idea and his cheesecake is very important, because the way American tort law treats the ideas contained in publications is very different from the way it treats products.

The Complaints' Product Liability Claims Seem Doomed to Fail

The relevant common law sources on product liability law are the Restatement (Second) of Torts §402A and the Restatement (Third) of Torts: Products Liability. Both - the first implicitly, and the second explicitly -- exclude books, magazines, encyclopedias, and other expressions of written information from the scope of strict products liability. (The only exception to the exclusion seems to be defective navigational charts and maps used for special purposes, such as flying).

Thus, to the extent Gorran sued under Florida products liability law, he may be out of luck. And only under this law, could he made the simple argument that the diet was "defective," and therefore the defendants should be held strictly liable for the injuries caused - that is, liable whether or not they were negligent, and regardless of their state of mind.

The Other Claims Will Doubtless Confront A First Amendment Defense

Gorran has also brought other claims, which do not attempt to apply strict liability, but do try to hold the defendants accountable for allegedly having published statements in a "negligent" or "deceptive" manner. Specifically, the claims invoke the tort of negligent misrepresentation and allege violations of Florida's Deceptive and Unfair Trade Practices Act ("FDUPTA").

These claims will doubtless face a strong First Amendment argument on the part of defendants. Will this argument succeed? The question is a subtle one.

To begin, it would be a mistake to assume that, just because the Atkins diet was "speech," it could not possibly be the basis for tort liability. After all, the torts of defamation and fraud are in a very real sense speech-based. So is tort liability for the professional communications of attorneys, accountants and, most to the point, doctors.

Furthermore, there is a way in which it is obvious that Atkins wanted the public to believe that the statements made about the Atkins diet were true. The only reason people would buy the books or pay attention to Dr. Atkins is because they were interested in losing weight. He claimed that his theory would allow them to lose weight. The implication was that the Atkins approach, being a diet, would facilitate weight loss in a manner consistent with health -- that is, that it was an approach to behavior that would produce weight reduction without causing injury.

To put it differently, the Atkins diet was not a work of aesthetic value. The books were bought because they expressed a practical theory, not because they were well-written.

Moreover, the theory was not a work of parody or fantasy. The Atkins diet was not like a shocking or provocative work, for which the author could rightly disclaim responsibility. So, unlike the writers of a violent movie like "Natural Born Killers," or a violent video game, Atkins could not plausibly deny that they expected readers to actually believe the ideas in their publications and to attempt to practice those ideas.

A First Amendment Defense, In This Case, Will Probably Succeed

So can Atkins be held liable for the damages suffered by Gorran, if the books Atkins sent out into the world were carelessly developed or deceptive?

The answer is no. And the reason is that the First Amendment of the United States Constitution places very strict limitations on what the states can do--either through their common law of negligence, or their consumer fraud law statutes--to limit speech, even speech which is negligently produced.

Of course, that is not to say that the First Amendment gives Atkins a blank check to say anything it wants without fear of liability. But as we shall see below, the First Amendment tips to balance in favor of Atkins - and does so in ways that give Atkins far more protection than the fast food or tobacco industries enjoy.

At First Glance, The Negligent False Advice Tort Seems to Support the Plaintiff

Gorran's lawyer might argue that the Restatement of Torts (Second) provides some support for the argument that Atkins should be held liable if it spoke negligently and those misrepresentations proximately caused his injuries. But in the end, that argument is unconvincing.

Section 311 of the Restatement says that "one who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information." Gorran's lawyer might claim that Atkins did just this: negligently providing false information to Gorran, in its publications, that he reasonably relied on, and that caused him physical harm.

In addition, the Restatement offers the following example: Bob buys a tombstone from Sam, a dealer in tombstones. Bob knows nothing about tombstones, so he asks Sam whether the tombstone can be safely carried. Sam carelessly says that the tombstone weighs 50 lbs and can be carried. It in fact weighs 150 lbs and Bob suffers a hernia during his attempt to carry it. Sam is liable to Bob.

Now replace Bob with Gorran and Sam with Atkins. Atkins told Gorran that he could eat a high fat diet. If that advice was careless, why doesn't it fall under Restatement of Torts (Second) §311?

On one level, the answer is simple: because the courts say that the First Amendment changes everything.

A Closer Look Shows Why a Negligent False Advice Claim Won't Work

In a series of decisions, courts have held that the First Amendment protects publishers from suits in tort except where the expressed meaning of the words are connected with "obscene material, child pornography, fighting words, incitement to imminent lawless activity and purposefully-made or recklessly-made false statements of fact such as libel, defamation, or fraud."

This quote comes from Smith v. Linn, a 1988 Pennsylvania case in which the plaintiff followed the recommendations in a book touting a "liquid protein diet" called the "The Last Chance Diet." The plaintiff lost 100 lbs and died of a cardiac failure. Her estate sued the publisher of the book. The Court of Common Pleas in Pennsylvania dismissed the suit, on the grounds that the publisher was protected by the First Amendment publish negligently researched ideas about dieting.

The Pennsylvania decision cited a famous 1983 Texas case, Herceg v. Hustler Magazine Inc.. There, a federal district court held that the First Amendment did not permit the estate of a young man who had hung himself to sue the publisher of an article that described a method of "autoerotic asphyxiation" as a form of sexual pleasure.

And these cases, in turn, cited a 1977 Florida Supreme Court decision, Cardozo v. True, for the proposition that the First Amendment bars suits in negligence for personal injury caused by errors in published works. (Technically, Cardozo only held that a bookseller could not be sued for errors in a cookbook she sold, not that the publisher could not be sued. However, other courts have assumed that the Florida Supreme Court was articulating a broader principle - one that would be applied to publishers as well.)

Why Does Free Speech Matter When the Speech is Negligent or Deceptive?

All the cases mentioned above all cite the First Amendment as the justification for the extra protection offered to publishers in cases of personal injury caused by negligent misrepresentations. So why can't Atkins be held liable for the damages suffered by Mr. Gorran if the statements it sent out into the world were negligently developed or deceptive?

The reason is that principles of free speech rooted in the First Amendment, and spreading throughout a variety of private law areas, including torts, constrain the kinds of communicative contexts that are proper bases for liability. The domain of books and articles written in good faith by someone staking out a controversial opinion is one of the contexts most heavily protected by these legal principles.

Although expressions of political opinion are clearly the best fortified by free speech principles, "political speech" is of course only a fragment of what the First Amendment protects. Federal and state courts throughout the nation have consistently offered strong protection to vigorously disputed statements made to the public within the context of scientific and medical contexts, even though the speech in question may have been negligent or false, and even though public health could be affected by such speech. Of course, such statements made within doctor-patient relationships are quite a different matter.

In fact, the Atkins case is a good example of why the First Amendment's intervention into negligence law makes some sense. Dr. Atkins seemed to have developed his theory in the context of a larger, more global critique of the mainstream American dietary establishment and the government agencies which endorsed its views.

Thus, the books Atkins published were not just advice books (although they were that as well). They were arguments for an idea and against others' ideas about what counted as good eating habits in modern America.

We do not think it farfetched to say that the books produced by Atkins are worth placing within First Amendment protection because they were arguments about ideas. The proper response by anyone in a democracy who is intrigued by a new idea, whether it be about food, relationships, or politics, is not to follow it blindly, but to subject it to critical scrutiny. Once an idea has been weighed and taken a persuasive, then the responsibility for any errors that may have flowed out of its original author's negligence belong to the reader, not the author or publisher.

So we think there are good reasons why any sort of claim in negligence against Atkins should be dismissed by the Florida court, as well as the claim in strict products liability. The final allegation--for deceptive trade practices under Florida's consumer protection laws, is a little harder to evaluate, since the First Amendment does not protect publishers from injury caused by fraudulent statements.

In the end, though, we suspect that Gorran's real beef (sorry for the pun) with Dr. Atkins is not that he thinks Dr. Atkins lied, but that Dr. Atkins was a zealot whose beliefs stopped him from doing good medicine. Sadly, even if that is true, it can be said for many other authors who wrote passionately about many other topics. Their errors--costly as they may be--are the price of a free marketplace of ideas.


Anthony J. Sebok, a Professor at Brooklyn Law School, teaches Torts and other subjects. His columns on tort law can be found in the archive of his work on this site. Benjamin Zipursky is a Professor at the Fordham University School of Law. Prof. Zipursky teaches torts and jurisprudence and is a member of the American Law Institute.

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