Court Recognizes First Amendment Protections To Advertising

A recent lawsuit decided in federal court in New York City rejected the claim of a fed-up dieter who blamed the diet he followed for causing him heart problems. The decision illustrates an important distinction as to legal protection marketers need to consider -- where is the line between fully protected free speech and commercial speech, the latter of which governments can and do heavily regulate.

The Atkins Lawsuit

Plaintiff Jody Gorran, went on the popular low-carbohydrate Atkins Diet in the spring of 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, however, his cholesterol shot up to 230. Although the published court papers do not say, he presumably lost weight because he remained on the diet for more than two years. However, in October 2003, when he experienced severe chest pain he wound up having angioplasty to unclog one of his coronary arteries, and a stent was placed into the artery to help keep it open. In 2004, Gorran decided to sue Atkins Nutritionals, Inc. for misrepresentation and unfair trade practices. He under the same type of statute that state attorney generals use to prosecute false advertising claims. Gorran argued that had Atkins accurately warned him about the diet’s health risks, he would not have followed it.

The case was ultimately decided by Judge Denny Chin in federal court in Manhattan. While the court found other problems with the misrepresentation claim, one of the most significant parts of the judge’s decision related to the freedom of speech protections afforded the Atkins Diet book, as well as parts of its related website

First Amendment Analysis

When words or ideas receive full First Amendment protection, the United States government, including the court system, cannot prevent or unnecessarily burden the expression of non-commercial speech even where such speech may be false or deceptive. Commercial speech, on the other hand, can be restricted, receives much lesser protection under the First Amendment particularly when the issue is truth or falsity that is unprotected. Thus, advertising can be (and is) so heavily regulated. Given this distinction, the court first considered whether the book and website should be considered commercial speech and the appropriate type of protection afforded such speech.

In determining whether speech is commercial, the court considered three factors: (1) whether the communication is an advertisement, (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 Atkins 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. Although the book contained several references to Atkins products and services that are sold for a profit, the court found that the mere fact that there was an underlying economic motive in selling the book and services did not turn the speech into commercial speech.

The court found that the website – which promoted the diet and related products and services -- contained both commercial and noncommercial speech. While the website sold products under the Atkins brand, the site also contained significant information on how to follow the diet and recommendations for optimizing health and nutrition. The court found that the fact that the website included commercial content did not permit Gorran to proceed because Gorran could not demonstrate that he relied on the commercial portion of the website (i.e., the Atkins products being sold as opposed to the concept of the Atkins diet).

Conclusion

The lesson to be learned from this interesting decision is that while the law remains clear that false advertising remains unprotected commercial speech, neither the government nor consumers should be able to challenge one’s ideas – even if they are sold as a book or with ancillary products. Here, the court took a careful look at what the consumer alleged was deceptive, and where the challenge speech was not based on a particular proposed commercial transaction, rejected an impingement on such non-commercial speech.