The First Amendment and Diet Industry Advertising: How "Puffery" in Weight-Loss Advertisements Has Gone Too Far

Article excerpt

  I. INTRODUCTION
 II. BACKGROUND
     A. Evolution of Commercial Speech and the First
        Amendment
     B. Evolution of the Diet Industry
     C. Regulatory Framework Governing the Diet
        Industry
        1. Relationship Between the FDA and the FTC
        2. FTC as the Primary Regulator
III. ANALYSIS
     A. Diet Industry Continues To Make Misleading
        and Scientifically Implausible Claims
     B. Puffery in Diet Industry Advertising Has Led to
        Documented Health Problems
        1. From the Atkins Diet to Nutri/System
        2. Recent Challenges to Diet Products Containing
           Ephedra
     C. Current Regulation of Diet Industry Advertising
        Is Not Sufficient.
        1. Appearance of FTC Success
        2. In Reality, FTC Actions Are Merely Reactive
        3. Requiring Media To Take Responsibility Is
           Unrealistic
           a. Media Expertise Is Lacking
           b. Financial Concerns Are More Important
           c. Deadlines Leave Little Time To Check
              Advertisements
           d. First Amendment Concerns
 IV. CONCLUSION

I. INTRODUCTION

In May 2001, Florida businessman Jody Gorran began the Atkins Nutritional Approach, a high-protein, low-carbohydrate diet that he followed until October 2003. (1) Instead of spending money on clothes in a smaller size, however, Gorran found himself paying significant hospital bills. (2) Shortly before going on the diet, Gorran's tests indicated normal cholesterol levels and a low risk of coronary vascular disease. (3) Two years and several episodes of severe chest pain later, Gorran discovered he needed surgery to reopen arteries leading to his heart. (4) His medical problems included elevated cholesterol, severe angina, and a near-fatal blockage of a coronary artery that required an emergency angioplasty and installation of a permanent stent. (5) Gorran immediately discontinued the Atkins diet at the request of his doctors, and by December 2003, his total cholesterol returned to a more normal level. (6)

After researching the diet following his health problems, Gorran discovered both the American Heart Association and the American Dietetic Association had issued warnings about the Atkins diet. (7) According to Gorran, though, the Internet site of Atkins Nutritionals made numerous claims that the diet was fine. (8) On May 26, 2004, Gorran filed a Complaint in Palm Beach County, Florida, against Atkins Nutritionals and the estate of the late Dr. Atkins. (9) In his Complaint, Gorran sought $15,000 in damages and alleged three causes of action against Atkins Nutritionals, including negligent misrepresentation that caused personal injury, a products liability claim for personal injury, and a violation under Florida's Deceptive and Unfair Trade Practices Act. (10)

Gorran's case raises an interesting question: should the Atkins book and web site material be afforded protection under the First Amendment? Attorneys for Atkins Nutritionals have argued the Atkins' materials were noncommercial speech, and neither state law nor the First Amendment permits liability to be imposed on nondefamatory, noncommercial speech. (11) Furthermore, Atkins' attorneys say courts have uniformly held that authors, publishers, and distributors of noncommercial speech owe no duty of care to readers, as "the ideas and information in a generally circulated self-help book and an associated website are fully protected by the First Amendment, even if they cause some harm." (12)

If a court finds that Atkins' book and web site were merely contributions to the marketplace of ideas regarding weight loss and nutrition, Gorran has no case. (13) If Gorran's attorneys can show the book and web site are commercial speech that comprised an integral part of Atkins' overall marketing strategy, however, Gorran's argument would be substantially stronger. (14) Gorran's lead attorney, Dan Kinburn, said in an interview he thinks Atkins' book and web site both constitute commercial speech, as they were created for the "purpose of inducing people to buy Atkins' products. …