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Fat People Lawsuit Against McDonald’s Is Dismissed

Well Sort Of— Judge Leaves Legal Cookie Jar Door for Plaintiffs

In 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.

Although 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.

Shortly 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.

 

Fast Food Wars Start in Earnest

New Newsletter Proves It

There 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.

 

A Few Predictions

  • Labels 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 America.
  • No advertising to minors; heck, maybe no advertising at all.
  • Special taxes on fast food and snack foods such as soft drinks and candy
  • There 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.

For 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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