1st Amendment Protects Atkins Diet from Suit, Rules N.Y. Judge

By | December 15, 2006

The Atkins diet is protected by the First Amendment against the claims of a Florida man who said the low-carbohydrate meal plan was dangerous and to blame for his heart troubles, a federal judge in New York ruled this week.

U.S. District Judge Denny Chin made the finding as he tossed a lawsuit in which Jody Gorran, of Delray Beach, Fla., claimed his cholesterol level shot up from 146 six months before he began the diet to 230 afterward, leading to severe chest pain and an angioplasty treatment.

The judge said a book about the diet was not an advertisement for products but rather was a guide to leading a controlled carbohydrate lifestyle.

“It is well settled that the mere fact that there is an underlying economic motivation in one’s activity does not turn that activity into commercial speech,” he said.

The judge in Manhattan said in a footnote that he has had success with his own “much simpler diet, which can be described in four words: Run more, eat less.”

In his lawsuit, Gorran, 53, sought unspecified damages, accusing Atkins Nutritionals Inc. and Paul D. Wolf, co-executor of the estate of Dr. Robert C. Atkins, of products liability, negligent misrepresentation and deceptive conduct.

A lawyer for the Physicians Committee for Responsible Medicine, which represented Gorran, said he expected to file an appeal within days.

“Obviously we’re very disappointed,” attorney Daniel Kinburn said. “We think it’s a real blow to consumers.”

Kinburn said his client was a wealthy businessman who was seeking only nominal financial damages because he primarily wanted the judge to order warning labels be put on the Atkins books and other related merchandise.

Gorran said the Atkins system, calling for a high-fat, high-protein, low-carbohydrate diet, is dangerous because it increases the risk of coronary heart disease, diabetes, stroke and certain types of cancer.

The Atkins company did not immediately return a telephone call seeking comment Monday.

The judge wrote that Gorran’s claims were without merit because the company’s books and food products are not defective or dangerous within the meaning of products liability law.

He noted that Gorran had admitted consuming large amounts of pastrami and cheesecake and that the Atkins diet merely consisted of advice and ideas.

“The concepts may be controversial and the subject of criticism, but they are protected by the First Amendment,” he said.

The Atkins diet calls for restricting carbohydrates to achieve weight loss before gradually adding them back in. However, many people who say they’re following the diet actually eat large amounts of protein and fat.

Before ruling, the judge said, he read passages of the 1999 and 2002 editions of “Dr. Atkins’ New Diet Revolution,” which explains the diet Atkins conceived of in the 1970s and the belief that it is safe for everyone, regardless of the amount of high-fat food the dieter consumes.

He said Atkins acknowledged in his book that risk factors for heart disease can worsen for some “fat-sensitive” people who follow the diet but that medical reports suggest that fewer than one person in three falls into that category.

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