## Facts

- Jody Gorran followed the Atkins Diet beginning in spring 2001, relying on a Dr. Atkins book and an Atkins website.
- Before starting, Gorran’s cholesterol level was 146; after about two months on the diet, it rose to 230.
- Gorran continued the diet until October 2003, when he experienced severe chest pain.
- He underwent angioplasty for a 99% coronary artery narrowing, and a stent was placed.
- He alleged the diet, promoted as safe, increased risks of coronary heart disease and other conditions because it encouraged high-fat, high-protein, low-carbohydrate eating.
- He consumed high-fat foods consistent with the diet, including large amounts of items such as pastrami and cheesecake.
- He also purchased limited quantities of Atkins-branded food products (about $25 worth) and contended those products were unreasonably dangerous as part of the overall diet plan.
- He sued Atkins Nutritionals, Inc. and the co-executor of Dr. Robert Atkins’s estate, asserting products liability, negligent misrepresentation, and deceptive practices under FDUTPA.
- Defendants moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).

## Issues

1. Whether the Atkins Diet, related book, and website content could be treated as “products” subject to products-liability claims under Florida law, and whether the alleged dangers were actionable defects.
2. Whether alleged misstatements about the diet’s safety could support negligent misrepresentation, or were barred because the challenged communications were protected by the First Amendment.
3. Whether the complaint stated a FDUTPA claim, including whether it alleged “actual damages” recoverable under the statute.

## Decision

- The court granted defendants’ Rule 12(c) motion and dismissed the complaint in full.
- The court held that the alleged harm flowed from following dietary advice and ideas, not from a defective product actionable in products liability.
- The court concluded that imposing liability based on the book and website’s dietary advice would impermissibly burden protected speech.
- The court dismissed the FDUTPA claim for failure to plead recoverable “actual damages,” because the damages alleged were personal-injury-related rather than the statute’s compensable economic loss.

## Legal Principles

- Products liability generally targets defects in tangible products; liability does not attach simply because a plaintiff alleges injury from following ideas or advice communicated in books or similar media.
- Obvious and commonly understood health risks associated with consuming high-fat foods do not, without more, establish a product defect or render related food products unreasonably dangerous.
- Noncommercial speech conveying dietary theories and health advice is protected by the First Amendment; tort theories that effectively penalize the content of such speech face constitutional barriers.
- FDUTPA requires “actual damages” of the type the statute recognizes, typically economic loss; claims framed as personal injury are not recoverable under the statute.

## Conclusion

The court dismissed all claims because the complaint sought to impose product and misrepresentation liability for dietary advice protected as speech, failed to allege a defect in a cognizable product, and did not plead FDUTPA “actual damages” in the form of recoverable economic loss.


Gorran v. Atkins Nutritionals, Inc., 464 F. Supp. 2d 315 (S.D.N.Y. 2006)