Atkins diet website gets First Amendment protection from negligent misrepresentation claim

In the Spring of 2001, Plaintiff Gorran decided to go on the wildly popular low-carbohydrate Atkins Diet. His cholesterol skyrocketed by almost a hundred points within the first two months, but he stayed on the diet anyway until 2003. After he experienced chest pains, he underwent an angioplasty to unclog an artery.

So Gorran sued Atkins Nutritionals and some other parties, claiming, among other things, that the information on the Atkins website about the diet constituted negligent misrepresentation. The defendants moved for judgment on the pleadings, and the U.S. District Court for the Southern District of New York granted the motion.

The court held that the content on the Atkins website that Gorran complained of could not be the source of any negligent misrepresentation, as it was fully protected by the First Amendment. Gorran had argued that the website functioned “as an electronic store to promote various [D]iet-related food products” and contained, therefore, commercial speech.

The court saw it differently. Indeed the site contained some commercial content (e.g., products for sale). But the content that Gorran alleged was negligent misrepresentations was merely general advice pertaining to the diet. That content was non-commercial. Accordingly, the information was “afforded full First Amendment protection,” and the claim was dismissed.

Gorran v. Atkins Nutritionals, Inc., — F.Supp.2d —-, 2006 WL 3586267 (S.D.N.Y., December 11, 2006).