Last month, Atkins Nutritionals came out on the losing and expensive end of a Florida lawsuit challenging the safety of its controversial Atkins diet plan. But, you see, says Atkins in a motion appealing the decision, the First Amendment protects their "right" to make false and misleading statements in the course of its business, without incurring liability to its customers.

Rebuffed in its first attempt last month to have a Florida court throw out a landmark personal injury lawsuit challenging the safety of the controversial Atkins Diet, Atkins Nutritionals has submitted a motion arguing that even speech with potentially life-threatening consequences is protected under the First Amendment.

Palm Beach County Judge Susan Lubitz ruled on October 26 against Atkins’ original motion to dismiss a lawsuit brought by Jody Gorran, a Florida businessman who developed near-fatal heart disease after two years on the meaty Atkins diet. Judge Lubitz ordered the case to proceed toward trial.

Atkins contends that the First Amendment permits it to make false and misleading statements in the course of its business, without incurring liability to its customers. But Dan Kinburn, Gorran’s attorney and senior counsel for the Physicians Committee for Responsible Medicine, notes First Amendment free speech guarantees do not apply in cases of false speech. “You can’t yell ‘fire’ in a crowded theater, you can’t run false ads in magazines, and you can’t tell people anxious to solve a health problem that it’s safe to follow a dangerous diet,” he says.

Case law strongly supports Kinburn. For example, in U.S. v. Schiff, the U.S. Court of Appeals, Ninth Circuit, ruled against the publishers of The Federal Mafia, a book promoting a tax evasion scheme, finding that even “pure commercial speech can be enjoined to the extent that it is fraudulent.”

Gorran, 53, developed elevated cholesterol, severe angina, and a near-fatal blockage of a coronary artery that required an emergency angioplasty and the installation of a permanent stent. A heart scan done prior to Gorran beginning the diet showed no sign of disease. Gorran is asking Atkins to place warning labels on all Atkins products and books. He is also seeking less than $15,000 in damages.

Kinburn noted that before Atkins filed this latest motion, Gorran had filed discovery requests seeking full disclosure of Atkins’ documents relating to the dangers of the diet and financial records from the sale of its diet and diet products. Kinburn suggested that Atkins’ concerns about what that discovery may reveal prompted this latest motion, which he characterized as a “long shot at best.”

Judge Lubitz may rule on Atkins’ motion to dismiss as early as next week.

Source: Physicians Committee for Responsible Medicine

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