People Lawsuit Against McDonald’s Is Dismissed
Sort Of— Judge Leaves Legal Cookie Jar Door for Plaintiffs
a 64 page opinion US District Judge Robert Sweet dismissed the class
action lawsuit that New York City attorney Samuel Hirsch filed
against McDonald’s on behalf of two obese teenage girls.
However, Judge Sweet left the door open for Hirsch to amend his
complaint and continue to pursue the lawsuit.
Judge Sweet matter-of-factly rejected claims that McDonald’s
could be liable for selling food which consumers generally know to
be unhealthy, he did allow the plaintiffs to reformulate the action
to one based health risks in McDonald’s food that are known
to McDonald’s but not disclosed by McDonald’s and not
generally know to the public. These health risks could be based on
ingredients or preparation methods that are not used when the same
or similar foods are prepared at home. The judge also allowed the
plaintiffs to add claims (a’ la tobacco smokers) that fast food
is “addictive” and that the plaintiffs at least individually
consumed it in such amounts that it constituted a health hazard.
after Judge Sweet issued his order, Congressman Ric Keller (R-Florida)
and Senator Mitch McConnell (R-Kentucky) announced that they are introducing
bills to prohibit federal lawsuits against restaurants and food manufacturers
based on obesity related claims.
Food Wars Start in Earnest
Newsletter Proves It
is probably no better measure of when a new public policy issue has
arrived then when a trade or legal publisher starts a newsletter
that specifically addresses that subject. Case in point: Food Chemical
News, a trade publication that we read semi-religiously (at least
when they’re not piled on Mr. Zackler’s desk) has sent
us a free inaugural issue of Obesity Policy Report with the headline
“FOOD = TOBACCO?” The as yet thin newsletter will apparently
track legislative proposals such as nutritional labeling, health warnings,
special food taxes, advertising restrictions as well as the embryonic
lawsuits which are targeting the fast and “junk” food
industries. We expect its girth to grown substantially.
Although even obesity “opponents” acknowledge there are
some very great differences between tobacco companies and the fast
and snack food industries (after all its still legal for an 8 year
old to possess a hamburger and for obvious reasons food may be addictive),
they expect to score some hits. And with states running substantial
deficits, what better way to raise revenue than to tax the stuff
or file a lawsuit seeking recovery of medical expenses to treat obesity
related diseases at public expense. Stay tuned.
on processed food products will be carefully scrutinized for accuracy,
as will any “voluntary” nutritional disclosures by
fast food chains.
Some local or state governments
will develop a half-baked definition of a fast food restaurant
(will it include Lyon’s, Denny’s,
mom & pop diner?) and require them to prominently label politically
incorrect food with nutritional WARNINGS. So menus will not only
contain the "good for you" heart icon, but they also may
have a heart icon with a line through it or maybe just a picture
of the Grim Reaper. We’ll call this the "Prop 65’ing" of
No advertising to minors; heck, maybe no advertising at all.
Special taxes on fast food and snack foods such as soft drinks and
will be a move in Congress to give (or force) the FDA jurisdiction
over fast food restaurants and impose nutritional labeling requirements
and health warnings. (We’re taking bets on how many decades
it will take the FDA to write these regulations.) Maybe even
health warnings on packaged food products.
Eric “Fast Food Nation" Slosser will get his own talk show
and it won’t be on the Food Channel.
those of you doing business in California and unapologetically selling
un-PC food, we predict a few extra goodies in the legal cookie
jar. (If you’re apologetically selling it, your (very fatty) goose
is really cooked.) First, lawsuits under the state’s "one
size fits all lawsuits" statute called the Unfair Competition
Act (officially known as Business & Professions Code Section
17200) and more legal pain if you have the audacity to defend yourself
in the court of public opinion. As discussed in the last edition
of Food Law Update, the California Supreme Court decided in Kasky
v. Nike that the First Amendment only applies to commercial interests
if you agree with your critics.
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