The First Amendment and diet industry advertising: how "puffery" in weight-loss advertisements has gone too far.

• Author: Gross, Jennifer E.

1. 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." (15) According to Kinburn, "the website doesn't exist as a discussion forum for diet advice, but exists solely to sell the diet-related products." (16) Consequently, in early 2005, Gorran's attorneys asked the court to compel Atkins Nutritionals to turn over documents relating to the company's marketing strategy. (17)

   Though Atkins Nutritionals had strongly resisted this request on the grounds that the materials were irrelevant to the case, Palm Beach County Court Judge Susan Lubitz found otherwise. (18) In March 2005, Judge Lubitz ordered Atkins Nutritionals to produce documents that pertained to its marketing strategy. (19) While Atkins' declaration of bankruptcy in July 2005 meant the lawsuit had to be removed to United States Bankruptcy Court and temporarily put on hold, Gorran stated he had no plans to drop his challenge. (20) He did not have to wait much longer. On January 10, 2006, Atkins Nutritionals announced that it had emerged from bankruptcy. (21) The case was transferred to the United States District Court for the Southern District of New York a short time later, but on December 11, 2006, Judge Denny Chin dismissed Gorran's lawsuit, ruling that "a book about the [Atkins] diet was not an advertisement for products but rather was a guide to leading a controlled-carbohydrate life." (22) If Gorran had his day in court, a favorable decision could have had quite an impact on the diet industry's successful advertising machine. After all, Americans spend more than thirty billion dollars per year on weight-control products and activities. (23) In 2006, revenues in the United States alone are expected to top $48 billion. (24)

   Because Americans' desire to lose weight has become somewhat of a modern-day search for the Holy Grail, it is not uncommon for millions of people to purchase a diet product as soon as it hits the shelves. (25) The book touting the South Beach Diet, for example, has sold nearly nine million copies since it was first released in 2003. (26) Although some diet programs advocate reduced caloric intake and increased physical activity as the right way to lose weight, a significant portion of the industry engages in deceptive to blatantly false advertising. (27) A Federal Trade Commission (FTC) "review of more than 300 advertisements from radio, television, magazines and newspapers that ran during 2001-2002 found that ... 55% [of the ads] made claims promising more than the product or service could likely deliver." (28)

   Although "puffery" and misleading advertising generally have been afforded protection under the First Amendment since the 1976 case Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, (29) the diet industry's advertising practices have reached a point where they need to be given a closer look. Since 1990, the FTC has brought approximately ninety enforcement actions for false or deceptive weight-loss advertisements or claims. (30) Despite these efforts, the number of weight-loss advertisements with unsubstantiated claims continue to grow. (31) This is problematic because consumers may base their decision on advertising, and advertisements with false or misleading information have the potential to affect a consumer's choice. (32) Furthermore, "if the entire field of weight-loss advertising is subject to wide-spread deception, advertising will lose its role in the efficient allocation of resources in a free-market economy." (33) Not only will other manufacturers end up advertising the impossible in order to compete, but the "deceptive promotion of quick and easy weight-loss solutions" could potentially fuel unrealistic consumer expectation. (34)

   Stricter government regulations regarding commercial speech that promotes weight-loss or diet products should be considered for three reasons. First, studies have shown that diet industry advertising often makes weight loss claims that are scientifically impossible. Second, consumers have suffered adverse health effects as a result of trying weight-loss programs or diet products. Third, current FTC regulations are not curbing the problem.

   Part II of this note outlines the history of commercial speech and its protections under the First Amendment, along with the history of the rapidly expanding diet industry and its regulator framework. Part II examines the three arguments in support of stricter governmental regulations on advertising in the diet industry. Part III looks at FTC studies that have shown dietary advertisements actually are blatantly false, not just misleading. Part III also outlines numerous cases where a consumer's trust in diet advertisements led to adverse health problems for that consumer. Part III discusses why neither the FTC's actions of filing suit against manufacturers, nor the possibility of media regulation, would be sufficient to solve the problem. Finally, this note offers an explanation as to why the current methods of addressing puffery and misleading advertising in the diet industry are not sufficient.

2. BACKGROUND

   1. Evolution of Commercial Speech and the First Amendment

      The First Amendment, passed in 1787 as part of the Bill of Rights, states that "Congress shall make no law ... abridging the freedom of speech, or of the press." (35) First Amendment protections, however, are not explicitly outlined in the United States Constitution. (36) Rather, protections have been created from United States Supreme Court decisions. (37) The concept of "commercial speech" itself did not even exist until the 1942 Supreme Court decision Valentine v. Chrestensen, and even then, it did not have a name. (38) In Valentine, the Court, without offering any analysis or comment, ruled that commercial speech was not protected under the First Amendment. (39)

      Broadly defined, commercial speech is considered "expression related to the economic interests related to the economic interests of the speaker and its audience, generally in the form of a commercial advertisement for the sale of goods and services." (40) The Supreme Court has cited three factors to consider in deciding whether speech...