McDonald's Lawsuit Deep-Fried for Now

A federal judge dismissed this week the class action lawsuit filed on behalf of New York children claiming McDonald's food caused health problems such as diabetes, high blood pressure and obesity.

It's a welcome short-term victory against unscrupulous personal injury lawyers, but it's not case-closed for McDonald's and the food industry.

The overarching theme of federal district court Judge Robert Sweet's opinion was "legal consequences should not attach to the consumption of fast food unless consumers are unaware of the dangers of eating such food."

The plaintiffs' burden was to show "McDonald's products involve danger ... not within the common knowledge of consumers," wrote Judge Sweet.

The plaintiffs alleged five counts of wrongdoing on the part of McDonald's.

Count One: McDonald's deceived the public by stating its foods were nutritious and encouraging consumers to "supersize" meals without disclosing negative health effects.

Judge Sweet dismissed this count on a technicality -- the plaintiffs failed to specify in their complaint a single deceptive act.

In subsequent filings, the plaintiffs cited two McDonald's ad slogans as examples of alleged deception -- "McChicken Everyday" and "McDonald's can be part of any balanced diet and lifestyle."

But Judge Sweet said these slogans amounted to "mere puffery" and wouldn't likely be actionable even if properly pleaded.

About McDonald's alleged failure to disclose negative health effects, Judge Sweet ruled it wasn't enough simply to point to an omission; the plaintiffs had to show the omission was deceptive -- "a duty [the plaintiffs] shunned." The plaintiffs didn't show the nutritional information was solely within McDonald's possession and consumers couldn't reasonably obtain it.

Count Two: McDonald's negligently targeted children with its marketing.

This count was also dismissed on a technicality -- the plaintiffs failed to identify a single specific advertisement directed at child consumers.

In subsequent filings, the plaintiffs raised two examples of alleged deceptive marketing: The plastic beef steak figure named "Slugger;" and promotions of the "Mighty Kids' Meal" -- a souped-up Happy Meal.

Judge Sweet again viewed these examples as "mere puffery" and said the plaintiffs would have to show how the promotions are deceptive.

Count Three: McDonald's acted negligently by selling foods high in cholesterol, fat, salt and sugar -- ingredients that cause obesity and detrimental health effects.

This count "essentially alleges that McDonald's products are inherently dangerous," wrote Judge Sweet. McDonald's countered that the public knows its foods have these attributes.

Judge Sweet agreed and added, "Nobody is forced to eat at McDonalds … [or to] supersize their meals … [and] as long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to a manufacturer."

The plaintiffs countered that McDonald's food is more dangerous than consumers would expect from a hamburger, chicken finger or French fry cooked at home or in another restaurant. McDonald's processing, they claimed, "creates an entirely different and more dangerous food."

McDonald's responded with the astoundingly ridiculous argument that it is common knowledge processing makes foods -- get this -- "more harmful." A skeptical Judge Sweet indicated the plaintiffs could try again on this count.

Count Four: McDonald's failed to warn consumers of the amounts of cholesterol, fat, salt and sugar contained in its products.

Judge Sweet accepted McDonald's arguments that the "dangers of its fare were well-known" and ruled that the plaintiffs failed to show any failure to warn was the legal cause of any claimed health effects.

Count Five: McDonald's acted negligently in marketing food products that were physically and psychologically addictive.

Judge Sweet dismissed this allegation as "overly vague."

The plaintiffs failed to specify whether the combination of fats and sugars or some other additive in McDonald's food makes it addictive and whether McDonald's purposefully manufactured its foods to be addictive. The plaintiffs also failed to specify whether a person can become addicted after eating at McDonald's one time or whether it takes a steady diet of McDonald's food.

So even though Judge Sweet dismissed the plaintiffs' wacky complaint, he invited them to try again.

Worse for McDonald's and the food industry -- perhaps right up there with McDonald's shocking "admission" that processed foods are more dangerous than unprocessed foods -- is Judge Sweet's embrace of junk science.

The opinion parrots data from the Centers for Disease Control and Prevention about alleged increases in childhood obesity, the bogus statistic of 300,000 deaths annually caused by obesity and other overly simplistic or junk science-based diet and obesity factoids on hypertension, cholesterol and fat.

Should judges in future cases likewise accept such nonsense at face value, the entire food industry may be in deep trouble -- particularly if more persuasive lawyers can convince less demanding judges that common dietary knowledge and common sense are beyond consumers' grasp and responsibility, and that the food industry should act as parents when parents don't.

Steven Milloy is the publisher of, an adjunct scholar at the Cato Institute and the author of Junk Science Judo: Self-defense Against Health Scares and Scams (Cato Institute, 2001).

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