As a result of a series of lawsuits being brought against fast food restaurants, various companies in the food industry have taken note of the threat of these lawsuits and have made numerous public announcements about new initiatives designed in part to try and ward off any future liability. Companies have announced what have been called "obesity initiatives", describing efforts to remove or reduce transfats from their products or downsizing the portions sold in prepackaged foods.
Burger King is promoting a new line of low fat baguette style chicken sandwiches which contain only five grams of fat. This follows the effort by McDonald's launching its new salads with Paul Newman dressing. McDonald's is also promoting an adult version of the Happy Meal, and signed on Bob Greene, best known as the personal trainer to Oprah Winfrey, to promote a healthier line of products. The "Go Active" meal is being test-marketed at 150 McDonald's restaurants. Kraft Foods has also undertaken what it calls "obesity initiatives". If you are interested in seeing what Kraft is doing on this issue, lot onto their website at www.kraft.com\obesity.
As for the two lawsuits brought against the McDonald's Corporation, the first one was filed in New York in August of 2002. The complaint filed on behalf of several minors alleged that the practices of McDonald's in making and selling their products were deceptive, and that this deception caused the minors who had consumed McDonald's products to injure their health by becoming obese. After the lawsuit was refiled in Federal Court, McDonald's then won its motion to dismiss the lawsuit.
At the outset, U.S. District Court Judge Robert Sweet noted in his decision that "the issue of determining the breadth of personal responsibility underlines much of the law: Where should the line be drawn between an individual's own responsibility to take care of herself, and society's responsibility to insure that others shield her?" He also noted in his opinion that he was guided by the principle that legal consequences should not attach to the consumption of hamburgers and other fast food fare unless consumers are unaware of the dangers of eating such food. He also took note of the fact that this was the first case of its kind to progress far enough along to reach the stage of motion practice. He also noted that if McDonald's motion to dismiss the case was denied, it could potentially spawn thousands of similar "McLawsuits" against fast food restaurants. He noted that Americans now spend more than $110 billion dollars a year on fast food each year.
The children plaintiffs alleged five separate causes of action as members of a potential class action of minors residing in New York State who purchased and consumed McDonald's products. The first two counts were claims based on deceptive acts and practices in violation of the New York State Consumer Protection Act, alleging that McDonald's failed to adequately disclose the ingredients or health effects of ingesting their products with high levels of cholesterol, fat, salt and sugar. The next three counts were based on claims of common law negligence. Count three alleged that McDonald's acted negligently in selling food products high in cholesterol, fat, salt and sugar when those foods cause obesity and detrimental health effects. Count four alleged that McDonald's failed to warn the consumers of McDonald's products of these ingredients and other ingredients, and that a diet high in these items could lead to obesity and health problems. Finally, count five alleged that McDonald's acted negligently in marketing these products that are "physically and psychologically addictive".
The judge found that the advertising used by McDonald's did not fall within the frame of being alleged false in nature, and that there were no omissions that could be deemed deceptive. The judge ruled that the complaint did not identify a single specific advertisement, promotion or statement directed at infant consumers and therefore would be dismissed in the absence of such specificity. The judge's opinion then moved on to addressing the claims based on negligence. He noted that claims of this nature, namely the dangers of over consumption of certain items, cannot be the basis of liability if the consequences of such over consumption are common knowledge. He also stated that the plaintiffs failed to allege in the complaint that their decision to eat at McDonald's several times a week were anything but a choice freely made and which could not be pinned on McDonald's.
With regard to the fourth count, the judge found that the complaint did not specify how often the plaintiffs ate at McDonald's. The proposed class action, the court noted, would consist entirely of persons who ate at McDonald's on at least only one occasion. As a result, any other number of factors could potentially affect the potential class action plaintiffs' weight and health. The court noted that any complaint, at a minimum, would have to establish that the plaintiffs ate at McDonald's on a sufficient number of occasions so that a question of fact would be raised as to whether McDonald's products played a significant role in their health problems. As to the "failure to warn" claim, the judge wrote that the plaintiffs' complaint failed to allege that the McDonald's products were dangerous in any way other than that which was open and obvious to a reasonable consumer. When combined with the fact that the complaint did not allege with enough specificity that the plaintiffs' consumption of McDonald's products was a significant factor in their obesity and related health problems, the court threw out this count of the complaint. The last count concerned the alleged addictiveness of McDonald's products. The court found the allegation insufficient and overly vague. There was no allegation as to whether McDonald's purposefully manufactured products that had addictive qualities.
Although dismissing all of the counts, the court gave the plaintiffs the opportunity to refile and amend their complaint to address the numerous deficiencies noted in the judge's decision. The plaintiffs proceeded to do so on February 19, 2003. Again McDonald's filed a motion to dismiss the amended complaint, opposition papers were filed by the plaintiff, and arguments were heard again before Judge Sweet.
On September 3, 2003 Judge Sweet issued his second opinion in the case, again dismissing the complaint against McDonald's. The amended complaint contained only three causes of action: The first was that McDonald's misled the plaintiffs, through advertising campaigns and other publicity, that its food products were nutritious, of a beneficial nutritional nature or effect and were easily part of a healthy lifestyle if consumed on a daily basis. The second count claimed that McDonald's failed to adequately disclose the fact that certain of its foods were substantially less healthy as a result of processing ingredient additives than represented by McDonald's in its advertising. The third count alleged McDonald's engaged in unfair and deceptive acts and practices by allegedly telling consumers that it provided nutritional brochures and information at all of its stores, when such information was not adequately available to the plaintiffs at a number of its outlets.
The court accepted one of the defenses raised by McDonald's, as to statute of limitations, such that any claims by the adult plaintiffs based on misrepresentations made more than three years before the commencement of the first lawsuit were barred by the state statute of limitations. However, the court did find the statute of limitations was not a bar to the claims of the minor children in this case.
The court noted that the plaintiffs had failed, under the claim of false advertising, to show reliance on the allegedly false advertisement. The court found that blanket allegations of reliance on a "long term deceptive campaign" were insufficient to satisfy the reliance requirement of the statue for otherwise unspecified advertisements. The court found that absent an example of an alleged false advertisement on which plaintiffs relied, their complaint only stated legal conclusions without any factual basis; as such, the judge found such conclusory allegations were not entitled to any presumption of truthfulness. The court noted that the amended complaint did not allege that plaintiffs witnessed any of the allegedly false advertisement cited against McDonald's. The court found that allegations made upon "information and belief", which means in legal terms absent other specific proof, were insufficient under established prior court rulings and precedent to support a cause of action under New York's Consumer Protection Laws.
The court also found the plaintiffs failed to allege the consumption of McDonald's food caused their injuries. The court noted that its' prior decision found the complaint did not actively allege the causation of plaintiffs' injuries because it did not specify how often the plaintiffs ate at McDonald's. The amended complaint attempted to specify how often the plaintiffs ate at McDonald's. However, what the plaintiffs did not do was address the role that factors other than diet played in their obesity and the health problems which the plaintiffs complained about in their lawsuit. The court found that the plaintiffs did not make any attempt to isolate the particular effect of McDonald's foods on their obesity and other alleged injuries. The court stated that, given what had been articulated by the court in its prior ruling, the plaintiffs should have included sufficient information about themselves to be able to draw a causal connection between the alleged deceptive practice and the plaintiffs' obesity and related diseases. The court found that information about the frequency with which the plaintiffs ate at McDonald's was helpful, but only began to address the issue of causation. Numerous other unanswered questions included: What else did the plaintiffs eat? How much did they exercise? Is there a family istory of the diseases which were alleged to be caused by McDonald's products? Without this and other additional information, the judge ruled that the information given in the complaint was insufficient. Finally, the court found that even if the plaintiffs were to sufficiently allege their injuries were causally related by McDonald's representations about its foods, the claim would still be dismissed because the plaintiffs did not allege that those advertisements were objectively misleading.
In sum, the lawsuits filed against McDonald's are the opening salvo in a series of lawsuits that will be brought over the coming years. Financed by significant recoveries against the tobacco industry, plaintiffs' law firms, coupled with organizations such as The Center for Science and the Public Interest and other "consumer organizations", see the food industry (and fast food restaurants in particular) in much the same terms as the public now perceives the tobacco industry. Unless Congress acts on pending legislation to stop litigation of this nature, these lawsuits will continue to be a part of the cost of doing business in the food industry.