Another McDonald's Case

As probably most of our food and dietary supplement clients know, there has been a federal class action case pending in New York City against McDonald’s called Pelman in which some plaintiffs alleged that they ate McDonald’s food, got fat, and McDonald’s marketing practices violate New York’s Unfair Practices Act, which closely resembles California’s Unfair Practices Act. The off-again, on-again lawsuit is now on again after the federal Second Circuit Court of Appeals reversed the trial court judge’s dismissal of the action. The case will now proceed on the issue of whether McDonald’s falsely advertised its food to be healthful.

Well, there has also been a much less publicized lawsuit pending in Marin Country California. According to a settlement notice that was recently published in Parent’s magazine, the lawsuit related to claims of misleading advertising by McDonald’s based upon its failure to remove trans fatty acids from the cooking process for some of its products as it previously publicly promised to do.

According to the settlement notice, which doesn’t identify the name of the case or the attorneys for either the plaintiff (no, it wasn’t CA Attorney General Bill Lockyer) or McDonald’s:

1) Although it’s a California state court action, the settlement applies nationally.

2) The total monetary amount of the settlement is $10.5 million, which includes a $7 million donation to the American Heart Association, $1.5 to notify consumers that some products are still being made with trans fat containing cooking oils, and $2 million for legal fees and related expenses. (Sorry, no free food coupons or the like for the consumers, i.e. all McDonald’s customers, who bought the food made with the trans fat containing cooking oils.)

3) When the settlement is approved McDonald’s will be immune from further legal action pertaining to this matter, except for those class members who opt out, all eight of them.

It's an unusual settlement since the bulk of the moneys go to a charity not involved in the litigation. The rest goes to plaintiffs' attorney (of course) and not to the consuming public.


Cereal Companies Sued Over "Low Sugar" Claim

Obesity related lawsuits aren’t limited to fast food chains. A San Diego mother named Jennifer Hardee has filed a class action lawsuit against Kraft, Kellogg and General Mills in which she claims that the companies’ marketing of their “low sugar” cereals is misleading because the sugar was replaced with other carbohydrates which did not change the products’ nutritional profiles. A similar lawsuit has been filed against Kellogg in Montreal.

We don’t yet have any additional information concerning these lawsuits, and it’s way too early to tell how they will progress. But, if we were plaintiffs’ lawyers we’d hope to find the following memo or email written by a marketing person in the files of one of the defendant’s:

“Although the low sugar formulation of the products won’t change their nutritional profiles, we won’t have any legal problems as long as keep our mouths shut and don’t say anything otherwise. If consumers think that “low sugar” means “better,” well, that’s their problem.”

Of course, if you and your employees have attended our seminar on best legal practices (see page 4 of this issue), there would be nothing for the plaintiff’s attorneys to find.


Is A Trans Fat Ban Coming?

We were going to headline this article the “Journal of Trans Fat” but it sounded too much like some boring, unfathomable technical piece. We’re never boring here and hope not to be unfathomable.

As you all know, Topic A in food regulatory policy has been obesity and its underlying nutritional issues. When Allan Zackler addressed the Northern California Institute of Food Technologists last May he discussed some alternative regulatory approaches, one of which would be to ban certain “bad” food ingredients. If you attended that meeting, you’ll know that Allan didn’t think that bans on particular types of foods or ingredients would be practical. Well, he may still be right, but it looks like a ban may be coming. Case in point: trans fat has no nutritional value.

All packaged food products will have to be trans fat labeled in their Nutrition Facts panel by January 1, 2006. (This rule also applies to the Supplement Facts panel.) In order to avoid the stigma of trans fat, food processors are busily reformulating their products. We’ve characterized this labeling requirement as a “back handed ban,” although we understand that some products haven’t, as yet, been successfully reformulated and will have to carry the dreaded disclosure.

Of course, the restaurant industry isn’t subject to FDA jurisdiction. It’s regulated by state and local authorities. Now the New York City Health Department has asked the restaurants in the City to “voluntarily” stop serving food that contains trans fat. Will voluntary become “mandatory?” And if local or state authorities do successfully ban trans fat, will the FDA be forced to follow suit? If the FDA does follow suit, how would it do so? Tran fat isn’t an ingredient. It’s a nutrient in a bunch of ingredients. Will all of these ingredients be banned or they be severely restricted?