Advertising Law Blog

The First Amendment's constitutional protection of speech loomed large in a recent Second Circuit Court of Appeals decision. In Gorran v. Atkins Nutritionals, Inc., No. 07-0120-cv (May 22, 2008), a disgruntled former Atkins dieter appealed the ruling by Judge Denny Chin of the Southern District of New York that dismissed his negligent misrepresentation, product liability, and state unfair competition claims. More detailed facts and The Lustigman Firm's analysis of the U.S. District Court, Southern District of New York decision can be found by clicking here.

Gorran appealed the District Court's judgment solely with respect to his claim under Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"). The District Court and the Second Circuit distinguished between the regulation of commercial versus noncommercial speech. Noncommercial speech is less regulated because it is afforded First Amendment protection, whereas commercial speech is heavily regulated.

On one hand, the Atkins book was found to be noncommercial speech because it was not an advertisement for defendant's products but rather "a guide to leading a controlled carbohydrate lifestyle." The Atkins website, on the other hand, contained both commercial and noncommercial speech in that it prominently displayed the "Atkins Advantage" brand name and offered products for purchase but also offered information on how to follow the diet and optimize health and nutrition.

Although the website contained some commercial content, the content Gorran alleged was negligent misrepresentation was noncommercial. Accordingly the website content at issue, diet "advice and ideas," was afforded full First Amendment protection and the dismissal of Gorran's complaint was affirmed.

The Southern District and Second Circuit courts make clear that a claim under FDUTPA (and presumably similar statutes in other states) will be barred where the claim is based on noncommercial speech offering particular views on health diet and nutrition. However, both courts seemed to leave open the idea that had Gorran premised his claim on the website's commercial content, his claim might have survived.

The ruling is important because it demonstrates that courts are willing to give at least certain content on a commercial website First Amendment free speech protection.