The opinion of the court was delivered by: Chin, D.J.
Plaintiff Jody Gorran, a 53-year old businessman, went on the popular low-carbohydrate Atkins Diet (the "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 level shot up to 230. Nonetheless, he remained on the Diet until October 2003, when he experienced severe chest pain. As a consequence, he had an angioplasty -- a surgical procedure -- to unclog one of his coronary arteries, and a stent was placed into the artery to help keep it open.
Gorran now sues defendants Atkins Nutritionals, Inc. ("ANI"), and Paul D. Wolf, co-executor of the Estate of Robert C. Atkins, M.D. (the "Estate"), for products liability, negligent misrepresentation, and deceptive conduct under Florida law. Gorran contends that the Diet is dangerous because it calls for a high-fat, high-protein, low-carbohydrate diet that increases the risk of coronary heart disease, diabetes, stroke, and certain types of cancer. He alleges that products sold by defendants --books, food products, and nutritional supplements -- are "defective and unreasonably dangerous." He seeks money damages as well as an injunction requiring defendants to put warning labels on all Atkins products and the ANI website.
Defendants move pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings dismissing the complaint. The motions are granted, for Gorran's claims are meritless. Defendants' books and food products are not defective or dangerous products within the meaning of products liability law. Pastrami and cheesecake -- large amounts of which Gorran admittedly consumed -- may present risks, but these are risks of which consumers are aware. The average consumer surely anticipates that these and other high-fat or high-protein foods may increase cholesterol levels and the risk of heart disease. Moreover, the Diet consists of advice and ideas. The concepts may be controversial and the subject of criticism, but they are protected by the First Amendment. For these and other reasons set out below, Gorran's claims are dismissed.
The facts are drawn from the complaint, the 1999 and 2002 editions of the book Dr. Atkins' New Diet Revolution, authored by Robert C. Atkins, M.D. (the "Book"), and the ANI website, www.atkins.com (the "Website").*fn1 For purposes of these motions, the facts alleged by Gorran are assumed to be true.
The late Dr. Robert Atkins conceived the Diet in the 1970s. (Compl. ¶ 6). The Diet advocates a high-protein, low-carbohydrate diet, promising potential dieters that they "can eat all [they] want, lose weight and stay healthy, so long as [they] restrict carbohydrates." (Id. ¶ 10).
The Diet is described as one that:
• Completely excludes hunger from the dieting experience;
• Includes food so rich that you've never seen them on any other diet;
• Produces steady weight loss even if you have experienced dramatic failure or weight regain on other diets; and
• Is so perfectly adapted to use as a lifetime diet that, unlike most diets, the lost weight won't come back. (Id. ¶ 11 (quoting Robert C. Atkins, M.D., Dr. Atkins' New Diet Revolution 4 (M. Evans & Co., Inc. 1999) (the "1999 Edition") (Compl. Ex. C))).*fn2
The Diet teaches that "Fat satiates the appetite . . . . Fat stops carbohydrate craving. And fat, in the absence of carbohydrates, accelerates the burning of stored fat. The wise dieter can use fat to his advantage." (Id. ¶ 25 (quoting 1999 Edition at 22 (Compl. Ex. D))). The Diet insists that it is safe for everyone, regardless of the amount of high-fat food the dieter consumes. (Id. ¶ 26).
Because there has been no long-term study of the Diet, there is no scientific evidence of the impact of following the Diet on the long-term health of dieters. (Id. ¶ 27). Of the short-term studies that have been conducted, the impact of following the Diet has varied. For approximately 30% of individuals studied, "bad" cholesterol (LDL) levels increased after following the Diet. (Id. ¶ 28). Dr. Atkins acknowledged that risk factors for heart disease can worsen for some individuals who follow the Diet. (Id. ¶ 30). These individuals, as the Book explains, are "fat-sensitive"; however, "intensive study of medical reports strongly suggests that fewer than one person in three falls into this category." (Id. ¶¶ 30-31 (quoting 1999 Edition at 139 (Compl. Ex. E))).
The Book recommends that the dieter obtain a complete lipid profile before the Diet and after following the initial --or "induction" -- stage of the Diet, during which the dieter avoids almost all carbohydrates. 1999 Edition at 139 (Compl. Ex. E). If the lipid profile worsens after the initial stage, the dieter should follow a low-fat version of the Diet, but should go back to the regular Diet if he or she "get[s] hungry or [does not] feel as well on [the low-fat version]." Id. If, however, the dieter is satisfied with the low-fat version, the dieter is advised to stay with it and have another lipid profile drawn.
Id. If the results of that profile show that the dieter is "fat sensitive," the dieter is advised to stay on the low-fat version of the Diet. Id. at 140.
Originally, Dr. Atkins marketed the Diet through books, nutritional supplements, herbs, and minerals. (Compl. ¶ 6). ANI, a New York corporation, was later established to market the Diet food products and nutritional supplements. (Id. ¶ 2; Robert C. Atkins, M.D., Dr. Atkins' New Diet Revolution 73 (HarperCollins Publishers 2002) (the "2002 Edition")). ANI and the Estate conduct an advertising and marketing campaign in all fifty states -- including Florida -- aimed at promoting the Diet and the sale of Atkins-related products. (Compl. ¶¶ 4-5, 7). The Website is an important part of this campaign. (Id. ¶ 7).
Only a small percentage of the population has a true genetic disposition toward heart disease. (Compl. ¶ 16). Heart disease is linked to serum cholesterol concentration; the higher a person's serum cholesterol concentration, the greater the chance that person will develop heart disease. (Id. ¶ 18). The amount of saturated fat and dietary cholesterol a person consumes will influence a person's cholesterol level. (Id. ¶ 19). Cholesterol is found only in animal food products, including meat, poultry, fish, cheese, and eggs; it is not found in food derived from plants. (Id. ¶ 20). The National Heart, Lung, and Blood Institute, a division of the National Institute of Health, recommends that the average adult consume no more than 300 milligrams of dietary cholesterol per day. (Id. ¶ 23).
3. Gorran Goes on the Atkins Diet
Gorran is a resident of Delray Beach, Florida. (Id. ¶ 1). He was 53 years old when this case was filed. (Id.). After reading the 1999 Edition, Gorran began the Diet in May 2001. (Id. ¶ 33). The 1999 Edition, like the 2002 Edition, contains a disclaimer on the copyright page, which states that the advice offered in the Book is not intended to be a substitute for the advice and counsel of the dieter's personal physician. (See Wargo Decl. Exs. A & B).
While on the Diet, Gorran consumed approximately $25 worth of food products purchased from ANI, including Advantage Bars, pancake mix, and pancake syrup. (Id. ¶¶ 44, 84). He also ate large amounts of pastrami and "Atkins friendly" cheesecake. (Id. ¶ 51). Prior to starting the Diet, he researched the Diet and discovered that diets high in saturated fats could potentially increase one's risk for heart disease. (Id. ¶ 34). Nevertheless, he began the Diet, relying on the advice of Dr. Atkins and the ANI website. That advice consisted of, inter alia, the following:
• Of the many misconceptions that surround the [Diet], perhaps the most widespread is the assumption that eating foods high in fat is a health risk. Not so -- in the absence of refined carbohydrates.
• It is true that every major health organization . . . endorses a low-fat diet in the unquestioned belief that fat causes heart disease. But are they right? A good deal of compelling evidence points in the opposite direction.
• There is no scientific evidence showing that consuming fat, saturated or otherwise, is bad for you in the context of a controlled-carbohydrate lifestyle.
• Rather than creating high cholesterol levels, eating saturated fat actually reduces those levels.
• You will lower your high-risk LDL cholesterol and total triglycerides far more effectively -- and far more quickly -- if you control your carbohydrate consumption in general and avoid refined carbs in particular than if you avoid animal foods that contain cholesterol. (Id. ¶ 34).
In November 2000, before starting the Diet, Gorran's cholesterol level was 146 mg/dl, his HDL -- or "good" --cholesterol was 53 mg/dl, his LDL -- or "bad" cholesterol -- was 85 mg/dl, and his triglycerides were 42 mg/dl. (Id. ¶ 36).*fn3 In December 2000, a computed tomography ("CT") scan of his heart revealed that Gorran had zero calcified plaque surrounding his ...