Jacob Mattis, J.D., LL.M. Candidate
Effective January, 2005, fast food consumers will no longer have the discretion to purchase familiar "supersize" portions of "America's favorite fries" or carbonated beverages from their local McDonald’s franchise. Bowing to public pressure, a series of lawsuits, and the nation's latest carbohydrate-counting, fat-reducing health craze, McDonald’s has joined many other fast-food chains, attempting to provide healthier food options for consumers. See McDonald's Phasing Out Supersize Fries, Drinks, Fox News, March 2, 2004 (found at http://www.foxnews.com/story/0,2933,113105,00.html) ("McDonald's added entree salads last year and has been moving to provide more fruit, vegetable and yogurt options with its Happy Meals.") McDonald’s contends that its menu has been undergoing revisions and simplifications to this effect long before the onset of the current hype and legal issues. Id.
In response to a slew of allegedly frivolous lawsuits that pit public health against personal responsibility, Congress will discuss a bill to block lawsuits that accuse fast-food chains of causing obesity and related health effects. See Law likely to block 'fat lawsuits' against fast-food chains in US, New Zealand Herald, March 10, 2004 (found at http://www.nzherald.co.nz/latestnewsstory.cfm?storyID=3553939&thesection =news&thesubsection=world). The House of Representatives is expected to pass the bill, but it is not yet clear whether the Senate will discuss the bill this year. Id. Arguably, the judicial system is more than capable of dismissing claims that are truly frivolous, and a Congressional ban on an entire family of consumer lawsuits would effectively deny citizens a right to their day in court. Id.
Questions of personal responsibility, consumer knowledge, public health, and the role of society in regulating the fast-food industry were thoroughly explored by the Southern District of New York in 2003. See Pelman v. McDonald's Corp., 237 F.Supp. 512 (S.D.N.Y. 2003). On January 22, the court issued an opinion in response to a five-count lawsuit by two families on behalf of their minor children, alleging deceptive acts in violation of New York's Consumer Protection Act, negligence through the sale of harmful products and a failure to warn of such harmful effects, and negligence in the sale of psychologically addictive products. Id. at 520.
In the eyes of most, such a lawsuit constituted a flagrant and frivolous
misuse of the legal system by plaintiffs who had thrown personal responsibility
to the wind in an attempt to cash in on an opportune legal theory concocted
by their counsel. However, there was, at the very least, a grain
of substance present in some of the claims against McDonald’s. While
the average consumer is well aware that fast food is not a sensible part
of a healthy diet, the average consumer may not be aware that Chicken McNuggets,
seemingly a healthier alternative to a McDonald's hamburger, contain twice
the fat per ounce as a hamburger. Id. at 535. Until
1990, McDonald's fries obtained their distinctive taste from beef tallow
grease, being fried in a mixture of 7% cottonseed oil and 93% beef tallow,
giving them more saturated beef fat per ounce than a burger. Id.
(citing Eric Schlosser, Fast Food Nation 3 (2002)). Arguably, McDonald’s
fast food may pose dangers unknown to the average consumer, sounding in
potential negligence and product liability suits involving a duty to warn
consumers of inherent, unknown dangers.
Complicating the situation, McDonald's advertising campaigns, while not outright deceptive, have involved somewhat dubious messages. While not expressly stating that fast food is intended to be a healthy part of a daily diet, plaintiffs cited campaigns such as "McChicken Everyday!" and "Big N'Tasty Everyday!" and a statement on McDonald's website that reads "McDonalds can be part of any balanced diet and lifestyle" as examples of deceptive advertisements. Id. at 527-528. McDonald's has also advertised that "Our sodium is down across the menu," listing four products that had not in fact had their sodium content lowered and has advertised that McDonald’s shakes contain "wholesome milk, natural sweeteners, a fluid ounce of flavoring, and stabilizers for consistency. And that's all," while a typical shake actually contains a plethora of additives and chemical preservatives. Id. at 529. Until fairly recently, McDonald’s also did not typically provide nutritional information concerning its products or make its ingredient lists readily available. Id.
The Pelman court ultimately concluded that while there were potential arguments against McDonald’s that might survive a motion to dismiss, the plaintiffs did not specifically allege sufficient information to sustain a claim of negligence or deceptive advertising. Id. at 528-30, 533, 536-37. The court further noted that even if the plaintiffs had alleged sufficiently specific acts and omissions on the part of McDonald’s that met the statutory requirements, the plaintiffs still failed to allege any facts that could prove that alleged negligence or deception by McDonald’s proximately caused any injuries. Id. at 537-39. The testimony of a medical expert would likely be required to prove that specific instances of consumption of McDonalds products were the proximate cause of a medical condition, rather than the countless other possible foods, drinks, environmental conditions, genetic factors, lifestyles, or activities that could have caused the same harms. Despite the plaintiffs' lack of sufficient specificity in their pleadings and the low probability that the plaintiffs could prove the necessary elements of their claims, the court granted leave to replead all claims not based on the New York Administrative Code, which had already been conclusively decided. Id. at 543.
While other plaintiffs may have balked at such a ruling, the Pelman plaintiffs repled their claims, and the Southern District of New York produced a second opinion on September 3, 2003. Pelman v. McDonald's Corp., 2003 WL 22052778, (S.D.N.Y. 2003). The court expanded on its dicta from January, citing McDonald’s advertisements from the plaintiffs' pleading that claim McDonald’s sells "Good basic nutritious food. Food that's been the foundation of well-balanced diets for generations. And will be for generations to come." Id. McDonald’s also described its food as "nutritious" and "leaner than you think," stating that it would be "easy" to follow USDA and Health and Human Services guidelines for a healthful diet "and still enjoy your meal at McDonald's." Id. The court also noted that McDonald’s, while making such claims, failed to make its nutritional information readily available at its restaurants until 1987, when it entered into a settlement agreement with the New York State Attorney General, agreeing to provide such information to consumers. Id.
Nonetheless, while the plaintiff's later allegations of deceptive advertisements were more specific than those of the original pleadings, the plaintiffs still failed to allege specifically how they relied upon such advertisements or whether McDonald’s products proximately caused their damages, rather than the myriad of other possible causes including genetics and environment. Id. Furthermore, by September 2003, all claims except those brought by the plaintiffs' infant children were barred by the statute of limitations. Id.
While the Pelman court's reasoning is sound, the court never quite brought itself to dismiss the plaintiffs' claims on any theory that plaintiffs are or should be responsible for their own food consumption. Americans now spend more than $110 billion on fast food each year, and each day, almost one in four adults visits a fast food restaurant. Pelman, 237 F.Supp. at 518 (citing Eric Schlosser, Fast Food Nation 3 (2002)). The impact of a judicial ruling or legislative act could be staggering, and it is questionable whether legal action of any kind is necessary. Laws exist to protect individuals who are unable to protect themselves when it is clear that society must enforce regulation to ensure the safety of individuals. Thus, numerous food and drug laws exist to enforce proper reporting of nutritional content and to prevent deceptive advertising, but no law restricts consumers from acting unwisely after obtaining accurate information concerning a product. A Congressional act preventing lawsuits against fast food corporations that allegedly cause obesity would usurp consumer responsibility from the hands of consumers and would do little to prevent suits for the already existing, much more pertinent causes against deceptive advertisement or violations of food and drug regulations. However, a court ruling against a fast-food corporation could open unwanted doorways, allowing countless similar suits against restaurants and manufacturers of unhealthy foods that any responsible consumer should know to avoid, rewarding faithful and long-term consumers for so aptly shirking personal responsibility.