SSB Maple Farms Inc City School District of Elmira Paper

Maple Farms Inc. v. City School District of Elmira

Read the Maple Farms case. Do you agree with the Court’s holding? If the facts of this case do not meet the requirements of commercial impracticability what do you think would have been commercial impracticability? Does the outcome in this case mean that Maple Farms has to fulfill all of its contracts with other school districts?

Pelman v. McDonalds

Read the Pelman v. Mcdonalds case. Summarize the case (facts, issue, holding of the court, reasoning of the court). Do you agree or disagree with the Court’s conclusion? Where should the line be drawn between an individual’s responsibility to take care of himself or herself, and society’s responsibility to protect that individual

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352 N.Y.S.2d 784
76 Misc.2d 1080
MAPLE FARMS INC., Plaintiff,
v.
CITY SCHOOL DISTRICT OF the CITY OF ELMIRA, New York, Defendant.
Supreme Court, Special Term, Chemung County.
Feb. 1, 1974.
CHARLES B. SWARTWOOD, Justice.
This is a motion for summary judgment in an action for declaratory judgment whereby the plaintiff seeks, first, a
determination that the contract wherein the plaintiff agreed to supply milk to the defendant school district at an agreed
price be terminated without further liability on the grounds of legal “impossibility’ or “impracticality’ because of the
occurrence of events not contemplated by the parties which makes performance impracticable and, second, a
determination that the defendant school district has authority to unilaterally relieve the plaintiff of its contract without
violating Article 8, Section 1 of the New York State Constitution.
We commend counsel on the quality of their briefs. The background of this dispute is that the price of raw
milk at the farm site is and has been controlled for many years in this area by the United States Department
of Agriculture through the New York-New Jersey Market Administrator. The president of the plaintiff milk
dealer has for at least ten years bid on contracts to supply milk for the defendant school district and is
thoroughly conversant with prices and costs. Though the plaintiff avers that the defendant was aware of the
prices of raw milk and the profit picture, the fiscal officer of the defendant denies that either the price of raw
milk or the profit structure of suppliers was known or of any concern to him or the defendant. The
defendant’s only concern was the assurance of a steady supply of milk for the school lunch program at an
agreed price on which the school’s budget had to be based. The mandated price of raw milk has in the past
fluctuated from a cost of $6.73 cwt. in 1969 to a high of $7.58 cwt. in 1972, or 12%, with fluctuation within a
calendar year ranging from 1% To 4.5%. The plaintiff agreed to supply milk to the defendant for the school
year 1973-1974 by agreement of June 15, 1973 at a price of $.0759 per half pint, at which time the mandated
price of raw milk was $8.03 cwt. By November of 1973 the price of raw milk had risen to $9.31 cwt. and by
December 1973 to $9.89 cwt., an increase of 23% Over the June 1973 price. However, it should be noted that
there was an increase from the low price in 1972 to the June 1973 price (date of the contract) of 9.5%.
Because of considerable increase in the price of raw milk, the plaintiff, beginning in October 1973, has
requested the defendant to relieve the plaintiff of its contract and to put the contract out for rebidding. The
defendant has refused. The plaintiff spells out in detail its costs based on the June and December prices of
raw milk and shows that it will sustain a loss of $7,350.55 if it is required to continue its performance on the
same volume with raw milk at the December price. Its contracts with other school districts where it is faced
with the same problem will triple its total contemplated loss. The plaintiff further claims that because of the
advent of the federally sponsored milk lunch subsidy of $.04 to the defendant, the price per half pint of milk
will be dropped to $.05 and the volume of milk sold will increase, thus further increasing the plaintiff’s loss.
There is no substantiation for this estimated volume increase so that we do not meet that question. The
plaintiff goes to great lengths to spell out the cause of the substantial increase in the price of raw milk, which
the plaintiff argues could not have been foreseen by the parties because it came about in large measure
from the agreement of the United States to sell huge amounts of grain to Russia and to a lesser extent to
unanticipated crop failures. The legal basis of the plaintiff’s request for being relieved of the obligation
under the contract award is the doctrine known variously as “impossibility of performance’ and “frustration
of performance’ at common law and as “Excuse by Failure of Presupposed Conditions’ under the Uniform
Commercial Code, s 2-615.
The common law rule is stated in Restatement of The Law, Contracts, Volume 2, Section 454, as follows:
“s 454. DEFINITION OF IMPOSSIBILITY.
In the Restatement of this Subject impossibility means not only strict impossibility but impracticability because of
extreme and unreasonable difficulty, expense, injury or loss involved.’
Performance has been excused at common law where performance has become illegal, Boer v. Garcia, 240 N.Y. 9, 147
N.E. 231; Matter of Kramer & Uchitelle, Inc., 288 N.Y. 467, 43 N.E.2d 493; Labaree Co. v. Crossman, 100 App.Div.
499, 92 N.Y.S. 565, affd. no op. 184 N.Y. 586, 77 N.E. 1189; where disaster wipes out the means of production,
Goddard v. Ishikawajima-Harima Heavy Industries Co., 29 A.D.2d 754, 287 N.Y.S.2d 901, affd. no op. 24 N.Y.2d 842,
300 N.Y.S.2d 851, 248 N.E.2d 600; where governmental action prevents performance, Nitro Powder Co. v. Agency of
Canadian Car & Foundry Co., 233 N.Y. 294, 135 N.E. 507; Mawhinney v. Millbrook Woolen Mills, 231 N.Y. 290, 132
N.E. 93. In Mineral Park Land Co. v. Howard, 172 Cal. 289, 156 P. 458 (1916) the defendants agreed to take all the
gravel from the plaintiff’s land up to a certain quantity. The defendants took only half the agreed amount because the
balance of the gravel was under the water level. The court relieved the defendants from the obligation to pay for the
balance under water because it was not within the contemplation of the parties that the gravel under the water level
would be taken and secondly because the cost of doing so would be ten to twelve times as expensive. The court stated
the common law rule, 172 Cal. 293, 156 P. at page 460:
“(4) “A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can
only be done at an excessive and unreasonable cost.’ (1 Beach on Contr. s 216.) We do not mean to intimate that the
defendants could excuse themselves by showing the existence of conditions which would make the performance of
their obligation more expensive than they had anticipated, or which would entail a loss upon them. But, where the
difference in cost is so great as here, and has the effect, as found, of making performance impracticable, the situation is
not different from that of a total absence of earth and gravel.’
407 E. 61st Garage v. Savoy Corp., 23 N.Y.2d 275, 296 N.Y.S.2d 338, 244 N.E.2d 37, holds that where economic
hardship alone is involved performance will not be excused. This is so even where governmental acts make
performance more expensive. Baker v. Johnson, 42 N.Y. 126; United States v. Wegematic Corp., 2 Cir., 360 F.2d 674.
Existing circumstances and foreseeability also play a part in determining whether a party should be relieved of his
contracts. 407 E. 61st Garage v. Savoy Corp., Supra; Farlou Realty Corp. v. Woodsam Associates, Inc., 49 N.Y.S.2d
367, affd. no op. 268 App.Div. 975, 52 N.Y.S.2d 575, affd. no op. 294 N.Y. 846, 62 N.E. 396.
The Uniform Commercial Code, s 2-615 states in part:
“Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted
performance:
(a) Delay in delivery or non-delivery in whole or in part by a seller . . . is not a breach of his duty under a contract for
sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of
which was a basic assumption on which the contract was made or by compliance in good faith with any applicable
foreign or domestic governmental regulation or order whether or not it later proves to be invalid.’
The Official Comment, Number “3′ to that section points out that the test of impracticability is to be judged by
commercial standards. Official Comment Number “4′ states:
“Increased cost alone does not excuse performance unless the rise in cost is due to some unforeseen contingency which
alters the essential nature of the performance. Neither is a rise or a collapse in the market in itself a justification, for that
is exactly the type of business risk which business contracts made at fixed prices are intended to cover. But a severe
shortage of raw materials or of supplies due to a contingency such as war, embargo, local crop failure, unforeseen
shutdown of major sources of supply or the like, which either causes a marked increase in cost or altogether prevents
the seller from securing supplies necessary to his performance, is within the contemplation of this section. (See Ford &
Sons, Ltd., v. Henry Leetham & Sons, Ltd., 21 Com. Cas. 55 (1915, K.B.D.).)’
Official Comment Number “10′ states in part that “. . . governmental interference cannot excuse unless it truly
“supervenes’ in such a manner as to be beyond the seller’s assumption of risk.’
We find little authority dealing with this section based on facts that are similar to those in this case. See, however:
Transatlantic Financing Corporation v. United States, 124 U.S.App.D.C. 183, 363 F.2d 312; United States v.
Wegematic Corporation, supra, 2 Cir., 360 F.2d 674, and Natus Corporation v. United States, 371 F.2d 450, 178 Ct.Cl.
1.
The Transatlantic case is somewhat analogous to the question raised here. In that case the Suez Canal was closed
causing the plaintiff’s ship en route to Iran to have to go around Africa to deliver its cargo of wheat. The plaintiff
sought to recover the increased expense from the defendant. The court found that shipping dangers in the Suez Canal
area could have been anticipated; that the risk should be allocated to the plaintiff and that the increased cost was not of
such magnitude to say that it was not within the accepted degree of risk. The doctrine enunciated by Uniform
Commercial Code, s 2-615 was explained by the court, 363 F.2d at page 315:
“The doctrine ultimately represents the evershifting line, drawn by courts hopefully responsive to commercial practices
and mores, at which the community’s interest in having contracts enforced according to their terms is outweighed by
the commercial senselessness of requiring performance. When the issue is raised, the court is asked to construct a
condition of performance based on the changed circumstances, a process which involves at least three reasonably
definable steps. First, a contingency-something unexpected-must have occurred. Second, the risk of the unexpected
occurrence must not have been allocated either by agreement or by custom. Finally, occurrence of the contingency
must have rendered performance commercially impracticable.’ Applying these rules to the facts here we find that the
contingency causing the increase of the price of raw milk was not totally unexpected. The price from the low point in
the year 1972 to the price on the date of the award of the contract in June 1973 had risen nearly 10% And any
businessman should have been aware of the general inflation in this country during the previous years and of the
chance of crop failures. However, should we grant that the first test had been met and thus the substantial increase in
price was due to the sale of wheat to Russia, poor crops and general market conditions which were unexpected
contingencies, then the question of allocation of risk must be met. Here they very purpose of the contract was to guard
against fluctuation of price of half pints of milk as a basis for the school budget. Surely had the price of raw milk fallen
substantially, the defendant could not be excused from performance. We can reasonably assume that the plaintiff had to
be aware of escalating inflation. It is chargeable with knowledge of the substantial increase of the price of raw milk
from the previous year’s low. It had knowledge that for many years the Department of Agriculture had established the
price of raw milk and that that price varied. It nevertheless entered into this agreement with that knowledge. It did not
provide in the contract any exculpatory clause to excuse it from performance in the event of a substantial rise in the
price of raw milk. On these facts the risk of a substantial or abnormal increase in the price of raw milk can be allocated
to the plaintiff. As pointed out in the Transatlantic case, 363 F.2d at page 319, where the circumstances reveal a
willingness on the part of the seller to accept abnormal rises in costs, the question of impracticability of performance
should be judged by stricter terms than where the contingency is totally unforeseen. The increase in the price of raw
milk from June to December 1973 was 23% And the estimated loss to the plaintiff in completing the contract on the
same assumed volume and estimated cost of raw milk would be $7,350.55.
Based on the plaintiff’s December 1973 figures, including increased transportation cost, the cost of a delivered half pint
of milk would be 10.4% Greater than the bid price. The percentage would be 8.7% Without the increased transportation
cost. There is no precise point, though such could conceivably be reached, at which an increase in price of raw goods
above the norm would be so disproportionate to the risk assumed as to amount to “impracticality’ in a commercial
sense. However, we cannot say on these facts that the increase here has reached the point of “impracticality’ in
performance of this contract in light of the risks that we find were assumed by the plaintiff.
The plaintiff also seeks a declaratory judgment that the defendant could agree to cancel the contract without violating
Article 8, Section 1 of the New York State Constitution. See: New York Telephone Company v. Board of Education,
270 N.Y. 111, 200 N.E. 663. Since the defendant has not indicated any willingness to excuse the plaintiff from
performance, there is therefore no issue in that regard before us since we have held that the plaintiff is not entitled to be
excused from performance under the law. We do not pass on any question of the impact of an unexpected increase in
volume, if that proves to be true, through the impact of the United States school lunch program.
The plaintiff’s motion is denied and the defendant is granted summary judgment dismissing the complaint.
237 F.Supp.2d 512
S.D.N.Y.,2003.
United States District Court,
S.D. New York.
Ashley PELMAN, a child under the age of 18 years, by her Mother and
Natural Guardian Roberta Pelman, Roberta Pelman, Individually, Jazlyn Bradley,
a child under the age of 18 years, by her Father and Natural Guardian Israel
Bradley, and Israel Bradley, Individually, Plaintiffs,
v.
McDONALD’S CORPORATION, McDonald’s Restaurants of New York, Inc.,
McDonald’sBronx,
No. 02 CIV. 7821(RWS).
Jan. 22, 2003.
SWEET, District Judge.
TABLE OF CONTENTS
Prior Proceedings …………………………………………
……… 519
Facts ……………………………………………………
……… 519
Parties ………………………………………………….
……… 519
Obesity in Young Persons and Its Effects …………………….
……… 519
Claims …………………………………………………..
……… 520
Discussion ……………………………………………….
……… 521
I.
Diversity Jurisdiction Exists, and the Plaintiffs’ Mo
tion To
Remand Is Denied …………………………….
……… 521
A.
The Outlets ……………………………….
B.
McDonalds of New York ………………………
……… 521
……… 522
336
C.
The Outlets and McDonalds of New York Are Akin To
Retailers And Distributors of McDonalds Corp.’s
Products ………………………………..
……… 523
II. McDonalds’ Motion to Dismiss ……………………
……… 524
A. Standard of Review …………………………
……… 524
B. Counts I and II: Plaintiffs Fail to State a Claim
Pursuant to N.Y. Gen. Bus. Law §§ 349 and 350 .
……… 524
1. Federal PreEmption ……………………………. 525
2. Requirements of §§ 349 And 350 …………..
……… 526
a. Count I ……………………………
……… 527
i. Deceptive Acts ………………..
……… 527
ii. Deceptive Omissions ……………
……… 529
b. Count II …………………………..
……… 530
III. Counts III, IV and V: Negligence Claims ………….
……… 530
A. Count III: Inherently Dangerous Food …………
……… 531
1. Whether McDonalds Had a Duty to Plaintiffs Be
cause
the Dangers Were Not Within Common Knowledg
e ……. 531
a. Allegations Within the Complaint ……..
……… 531
b.
Allegations Outside the Complaint …….
……… 533
i.
Plaintiffs’ Claim that McDonalds’ P
roducts
are More Dangerous than the Avera
ge
Hamburger, Fries and Shake ……
……… 534
ii.
Allergic Sensitivity …………..
iii.
Foreseeable Misuse …………….
iv.
The NLEA ……………………..
……… 536
……… 536
……… 537
2.
Proximate Cause ………………………..
……… 537
B.
Count IV: Failure to Warn of Unhealthy Attributes
…….. 540
IV. Count V: Sale of Addictive Products ……………..
……… 542
V. Leave to Amend is Granted ………………………
……… 543
Conclusion ……………………………………………….
……… 543
Defendants McDonald’s Corporation (“McDonalds Corp.”); McDonald’s Restaurants of
New York, Inc. (“McDonalds of New York”); McDonald’s 1865 Bruckner Boulevard
Bronx, New York (“Bruckner Boulevard outlet”); and McDonald’s 2630 Jerome
Avenue, Bronx, New York (“Jerome Avenue outlet”) (collectively “McDonalds”) have
moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss
the complaint of class-action plaintiffs Ashley Pelman, Roberta Pelman, Jazlen
Bradley, and Israel Bradley. The plaintiffs have cross-moved to remand the case to
state court.
This action presents unique and challenging issues. The plaintiffs have alleged that
the practices of McDonalds in making and selling their products are deceptive and
that this deception has caused the minors who have consumed McDonalds’ products
to injure their health by becoming obese. Questions of personal responsibility,
common knowledge and public health are presented, and the role of society and the
courts in addressing such issues.
The issue of determining the breadth of personal responsibility underlies 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 ensure that others shield her?
Laws are created in those situations where individuals are somehow unable to protect
themselves and where society needs to provide a buffer between the individual and
some other entity–whether herself, another individual or a behemoth corporation
that spans the globe. Thus Congress provided that essentially all packaged foods sold
at retail shall be appropriately labeled and their contents described. The Nutrition
Labeling and Education Act of 1990, Pub.L. 101-535, 104 Stat. 2353 (Nov. 8, 1990)
(the “NLEA”), 21 U.S.C. § 343(q). [FN1] Also as a matter of federal regulation, all
alcoholic beverages must warn pregnant women against their use. 27 U.S.C. § 215
(forbidding sale of alcohol unless it bears the following statement: “GOVERNMENT
WARNING: (1) According to the Surgeon General, women should not drink alcoholic
beverages during pregnancy because of the risk of birth defects ….”); 27 C.F.R. §
16.21. Congress has gone further and made the possession and consumption of
certain products criminal because of their presumed effect on the health of
consumers. [FN2] Other products have created health hazards and resulted in
extensive and expensive class action litigation. E.g., Amchem Products v. Windsor,
521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (affirming denial of
certification of class of potentially millions who had suffered injuries as a result of
exposure to asbestos); In re Diet Drugs (Phentermine, Fenfluramine,
Dexfenfluramine) Prods. Liability Litig., 282 F.3d 220, 225 (3d Cir.2002) (class action
of six million who took diet drugs (Pondimin and Redux) that were later linked to
valvular heart disease); In re Breast Implant Cases, 942 F.Supp. 958, 959-60
(S.D.N.Y.1996) (discussing possibility of transfer of thousands of cases alleging
injuries from silicone breast implants). Public health is one, if not the, critical issue in
society.
FN1. The NLEA sought “to ensure that consumers have access to information about
food that is scientifically valid, truthful, reliable, understandable and not misleading.
This information will enable consumers to make more healthful food choices.” Marilyn
J. Schramm, Constitutional Protection of Commercial Speech Under the Central
Hudson Test as Applied to Health Claims, 51 Food & Drug L.J. 323 (1996) (citation
omitted); Mara A. Michaels, FDA Regulation of Health Claims Under the Nutrition
Labeling and Education Act of 1990: A Proposal for a Less Restrictive Scientific
Standard, 44 Emory L.J. 319, 327 (Winter 1995) (“Congress believed that if
consumers were informed about the possible health benefits of foods, they would be
better equipped to make appropriate food choices.”). To promote these goals, Section
343(q) requires, inter alia, that non-exempted retail food be labeled with the
following information: (1) the serving size; (2) the number of servings per container;
(3) the total number of calories derived from any source and derived from fat; (4)
the amount of total fat, saturated fat, cholesterol, sodium, total carbohydrates,
complex carbohydrates, sugars, dietary fiber, and total protein per serving. 21 U.S.C.
§ 343(q)(1)(A)-(E).
FN2. In the interest of consistency and integrity, it should be noted that the author of
this opinion publicly opposed the criminalization of drugs. See Stephen Labaton,
“Federal Judge Urges Legalization of Crack, Heroin and Other Drugs,” N.Y. Times at
A1 (Dec. 13, 1989) (“Judge Sweet became the first Federal judge to propose publicly
that illegal drugs be made legal ….”). This belief is based upon the notion that, as
long as consumers have adequate knowledge about even harmful substances, they
should be entitled to purchase them, and that the issue should be one of health,
rather than of the criminal law. E.g., Robert W. Sweet & Edward A. Harris, Moral and
Constitutional Considerations in Support of the Decriminalization of Drugs, in How To
Legalize Drugs 430, 433 (Jefferson M. Fish, ed. 1998) (“Ultimately, we favor a drug
policy that would be comparable to the nation’s current policy and legal framework
regulating alcohol, and we suggest that support for such a policy–based on a right to
self-determination–may be derived from the Ninth Amendment of the
Constitution.”). The same logic must apply in the situation of fast food, which is
arguably less harmful and certainly less demonized than drugs that have been made
illegal–unless, of course, this case is the opening salvo in the “War on Big Macs.”
This opinion is 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. As discussed, infra, this guiding principle
comports with the law of products liability under New York law. As Sir Francis Bacon
noted, “Nam et ipsa scientia potestas est,” [FN3] or knowledge is power. Following
from this aphorism, one important principle in assigning legal responsibility is the
common knowledge of consumers. If consumers know (or reasonably should know)
the potential ill health effects of eating at McDonalds, they cannot blame McDonalds if
they, nonetheless, choose to satiate their appetite with a surfeit of supersized
McDonalds products. On the other hand, consumers cannot be expected to protect
against a danger that was solely within McDonalds’ knowledge. Thus, one necessary
element of any potentially viable claim must be that McDonalds’ products involve a
danger that is not within the common knowledge of consumers. As discussed later,
plaintiffs have failed to allege with any specificity that such a danger exists.
FN3. The phrase, which appeared in De Haeresibus (1597), is literally translated as
“for knowledge itself is power.”
McDonalds has also, rightfully, pointed out that this case, the first of its kind to
progress far enough along to reach the stage of a dispositive motion, could spawn
thousands of similar “McLawsuits” against restaurants. Even if limited to that ilk of
fare dubbed “fast food,” the potential for lawsuits is great [FN4]: Americans now
spend more than $110 billion on fast food each year, and on any given day in the
United States, almost one in four adults visits a fast food restaurant. Eric Schlosser,
Fast Food Nation 3 (2002) (hereinafter “Schlosser”). The potential for lawsuits is even
greater given the numbers of persons who eat food prepared at other restaurants in
addition to those serving fast food. See FDA, Food Labeling; General Requirements
for Health Claims for Food, 58 FR 2478, 2516, 1993 WL 1547 (Jan. 6, 1993) (“Almost
half of the American food dollar is spent on food consumed away from home, and …
perhaps as much as 30 percent of the American diet is composed of foods prepared
in food service operations.”). In light of these facts, the Court is cognizant of its duty
“to limit the legal consequences of wrongs to a controllable degree and to protect
against crushing exposure to liability.” McCarthy v. Olin Corp., 119 F.3d 148, 157 (2d
Cir.1997) (quoting Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402, 492 N.Y.S.2d
555, 557, 482 N.E.2d 34 (1985)).
FN4. Indeed, The Economist in its Dec. 21, 2002 issue provided an Orwellian view
from the year 2012 of what the potential success of fast- food lawsuits would do to
the American landscape and culture. “Battling against big food,” The Economist 108
(Dec. 21, 2002).
The interplay of these issues and forces has created public interest in this action,
ranging from reports and letters to the Court to television satire. [FN5] Obesity,
personal liberty and public accountability affect virtually every American consumer.
FN5. Much of the reaction has been negative. Debra Goldman, “Consumer Republic:
common sense may not be McDonald’s ally for long,” ADWEEKE. Ed. 14 (12/02/02),
2002 WL 103089868 (“In dozens of on-the- street interviews and Web polls
conducted since the suit made news last month, the masses have expressed their
incredulity at and contempt for the litigious kids–and parents–who won’t take
responsibility for a lifetime of chowing down Happy Meals. With much tongueclucking, the vox populi bemoans yet another symptom of the decline of personal
responsibility and the rise of the cult of victimhood.”). See also Sarah Avery, “Is Big
Fat the Next Big Tobacco?” Raleigh News & Observer, at A25, 2002 WL 11733461
(Aug. 18, 2002) (“[A related] lawsuit has brought howls of dissent and derision–as
yet another example of a litigious society run amok. How, indeed, could food be
considered as addicting and harmful as smoking?”); Neil Buckley, “Big Food faces
grilling over America’s obesity ‘epidemic,’ ” Fin. Times at P20 (11/27/02) (quoting
founder of Center for Consumer Freedom, which gets funding from restaurants and
food companies, as stating “The reality is that anyone with an IQ higher than room
temperature will understand that excessive consumption of food served in fast-food
restaurants will lead to weight gain.”); “How did the lawyer keep from laughing?,” S.
Bend Trib. (Ind.) (08/13/02) (“[T]he fast-food lawsuit is generally regarded as a joke
….”); Amity Shlaes, “Lawyers get fat on McDonald’s,” Chicago Tribune, at 25
(11/27/02) (“Every now and then America draws a cartoon of herself for the
amusement of the rest of the world. Last week’s fat lawsuit against McDonald’s is one
of those occasions.”).
In terms of the pending motion by McDonalds to dismiss the complaint, these
principles require the complaint to be dismissed for lack of specificity, with leave
granted to replead within the limits set forth below.
Prior Proceedings
The plaintiffs commenced suit on August 22, 2002, in the State Supreme Court of
New York, Bronx County. Defendants removed the action to the Southern District of
New York on September 30, 2002, alleging as the basis of removal that the plaintiffs
had fraudulently joined non-diverse parties in order to defeat diversity jurisdiction
pursuant to 28 U.S.C. § 1332.
McDonalds filed the instant motion to dismiss plaintiffs’ complaint (the “Complaint”)
on October 7, 2002. The plaintiffs cross-moved to remand and in opposition to the
motion on October 25, 2002. Oral argument on both motions was held on November
20, 2002, and the motions were considered fully submitted at that time.
Facts
As befits a motion to dismiss, the following facts are drawn from the allegations in
the Complaint and do not constitute findings of fact by the Court.
Parties
Ashley Pelman, a minor, and her mother and natural guardian Roberta Pelman are
residents of the Bronx, New York.
Jazlen Bradley, a minor, and her father and natural guardian Israel Bradley are
residents of New York, New York.
The infant plaintiffs are consumers who have purchased and consumed the
defendants’ products and, as a result thereof, have become overweight and have
developed diabetes, coronary heart disease, high blood pressure, elevated cholesterol
intake, and/or other detrimental and adverse health effects as a result of the
defendants’ conduct and business practices.
Defendant McDonald’s Corp. is a Delaware corporation with its principal place of
business at One McDonald’s Plaza, Oak Brook, Illinois. It does substantial business
with outlets in the State of New York, as well as throughout the fifty states and the
world.
Defendant McDonalds of New York is a New York State corporation with a registered
agent office located at 80 State Street, Albany, New York. It does substantial
business with outlets and/or franchises in the State of New York.
McDonalds is the owner, manager, franchisee and operator of defendants the
Bruckner Boulevard and Jerome Avenue outlets. Ashley and Roberta Pelman
purchased and consumed food products at the Bruckner Boulevard outlet. Jazlen and
Israel Bradley purchased and consumed food products at the Jerome Avenue outlet.
All products, ingredients, promotions and advertisements sold, provided, utilized,
advertised and promoted by the Jerome Avenue and Bruckner Boulevard outlets were
authorized by McDonalds Corp. and McDonalds of New York.
McDonalds Corp. and McDonalds of New York, through its agents, servants, and/or
employees, operate both company-owned outlets and franchises, and prescribe their
ingredients, qualities and quantities of the food products served, so as to insure that
its food products sold in one state or location is substantially identical to food
products sold elsewhere in the country.
Obesity in Young Persons and its Effects
Today there are nearly twice as many overweight children and almost three times as
many overweight adolescents as there were in 1980. In 1999, an estimated 61
percent of U.S. adults were overweight or obese and 13 percent of children aged 6 to
11 years and 14 percent of adolescents aged 12 to 19 years were overweight. In
1980, those figures for children were 7 percent for children aged 6 to 11 years and 5
percent for adolescents aged 12 to 19 years.
Obese individuals have a 50 to 100 percent increased risk of premature death from
all causes. Approximately 300,000 deaths a year in the United States are currently
associated with overweight and obesity. As indicated in the U.S. Surgeon General’s
2001 Report on Overweight and Obesity, “left unabated, overweight and obesity may
soon cause as much preventable disease and death as cigarette smoking.”
Obesity and overweight classification are associated with increased risk for coronary
heart disease; type 2 diabetes; endometrial, colon, postmenopausal breast and other
cancers; and certain musculoskeletal disorders, such as knee osteoarthritis.
Studies have shown that both modest and large weight gains are associated with
significantly increased risk of diseases. For example, a weight gain of 11 to 18
pounds increases a person’s risk of developing type 2 diabetes to twice that of
individuals who have not gained weight, while those who gain 44 pounds or more
have four times the risk of coronary heart disease (nonfatal myocardial infarction and
death) of 1.25 times in women and 1.6 times in men. A gain of 22 pounds in men
and 44 pounds in women result in an increased coronary heart disease risk of 1.75
and 2.65, respectively.
In certain obese women, the risk of developing endometrial cancer is increased by
more than six times. Overweight and obesity are also known to exacerbate many
chronic conditions such as hypertension and elevated cholesterol and such individuals
may also suffer from social stigmatization, discrimination and poor body image.
In 1995, the total estimated costs attributable to obesity amounted to an estimated
$99 billion. In 2000, the cost of obesity was estimated to be $117 billion. Most of the
costs associated with obesity arise form type 2 diabetes, coronary heart disease and
hypertension.
Claims
The plaintiffs allege five causes of action as members of a putative class action of
minors residing in New York State who have purchased and consumed McDonalds
products. Counts I and II are based on deceptive acts and practices in violation of the
Consumer Protection Act, New York Gen. Bus. Law §§ 349 and 350, and the New
York City Administrative Codes, Chapter 5, 20-700 et seq. Count I alleges that
McDonalds failed to adequately disclose the ingredients and/or health effects of
ingesting certain of their food products with high levels of cholesterol, fat, salt and
sugar; described their food as nutritious; and engaged in marketing to entice
consumers to purchase “value meals” without disclosing the detrimental health
effects thereof. Count II focuses on marketing techniques geared toward inducing
children to purchase and ingest McDonalds’ food products. Count III sounds in
negligence, alleging that McDonalds acted at least negligently in selling food products
that are high in cholesterol, fat, salt and sugar when studies show that such foods
cause obesity and detrimental health effects. Count IV alleges that McDonalds failed
to warn the consumers of McDonalds’ products of the ingredients, quantity, qualities
and levels of cholesterol, fat, salt and sugar content and other ingredients in those
products, and that a diet high in fat, salt, sugar and cholesterol could lead to obesity
and health problems. Finally, Count V also sounds in negligence, alleging that
McDonalds acted negligently in marketing food products that were physically and
psychologically addictive.
Discussion
I. Diversity Jurisdiction Exists, and the Plaintiffs’ Motion to Remand Is
Denied
In order to rule on this motion, this Court must have jurisdiction. Defendants
removed to federal court alleging that diversity jurisdiction exists pursuant to 28
U.S.C. § 1332.
[1] Section 1332 states, in pertinent part, that:
(a) The district court shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and
costs, and is between-(1) Citizens of different States ….
28 U.S.C. § 1332. Section 1332 requires complete diversity of citizenship; therefore
no defendant may share citizenship with a plaintiff. Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 373-74, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978). There is
no dispute that all of the plaintiffs are New York residents and that three of the
defendants–McDonalds of New York, the Bruckner Boulevard outlet, and the Jerome
Avenue outlet–are New York residents. Therefore, unless the three non-diverse
defendants were “fraudulently joined” to defeat jurisdiction, complete diversity does
not exist, and this Court lacks subject matter jurisdiction over the controversy.
As an initial matter, although this concept is described as “fraudulent joinder,”
suggesting that the determinative issue is one of motive, motive in fact has nothing
to do with it. In re Rezulin Prods. Liability Litig., 133 F.Supp.2d 272, 279
(S.D.N.Y.2001) (“The only issue is whether the plaintiff has a legitimate claim against
the non-diverse or in-state defendant–whether, in other words, the plaintiff has a
real or direct interest in the controversy vis-a-vis the non-diverse or in-state
defendant ….”). The standard for determining whether a plaintiff’s claim against a
defendant is sufficiently substantial to defeat removal jurisdiction is governed by
Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 (2d Cir.1998).
[2] In order to show that a non-diverse defendant was fraudulently joined to defeat
diversity jurisdiction, the defendant must demonstrate, by clear and convincing
evidence, either that there has been outright fraud committed in the plaintiffs’
pleadings, or that there is no reasonable basis, based on the pleadings, for liability
against the non-diverse defendants in light of the claims alleged. Whitaker v.
American Telecasting, Inc., 261 F.3d 196, 207 (2d Cir.2001) (quoting Pampillonia,
138 F.3d at 461). The burden on a removing defendant to meet this standard is a
heavy one, and all reasonable doubts of fact and law are resolved in favor of the
plaintiff. Id. “Nevertheless, the burden is not impossible of satisfaction.” In re
Rezulin, 133 F.Supp.2d at 280.
In order to interpret the legal standards stated above, it is necessary to look to the
“realities of the record.” Rose v. Giamatti, 721 F.Supp. 906, 915 (S.D.Ohio 1989).
The discussion of whether the plaintiffs have stated a claim against the outlets and
McDonalds of New York necessarily augurs the discussion, infra, of whether the
Complaint should be dismissed. For ease of reading, this section summarizes the later
analysis.
A. The Outlets
Plaintiffs have chosen to join as defendants two of McDonalds’ myriad outlets in New
York State–both of which happen to be located in the Bronx, New York. As an initial
matter, it is worth noting that this action is labeled a statewide class action, and any
putative class members will certainly have eaten at other outlets than the ones
named in the Complaint.
[3] With regard to the claims under the Consumer Protection Act, as discussed infra,
plaintiffs fail to cite any specific advertisements or public statements that may be
considered “deceptive” on the part of any of the defendants, including the outlets. In
addition, while the Complaint does cite to specific omissions on the part of all
defendants–namely the failure to include nutritional labeling at points of purchase
[FN6]–it does not claim that the outlets had any particular knowledge in their
possession and not in the public’s possession that would require them to post such
information. Therefore, the plaintiffs have not stated a claim against the outlets
under the Consumer Protection Act.
FN6. Because the outlets utilize labels presumably created at the national level, they
cannot be responsible for the lack of nutritional labeling on the packaging itself.
Plaintiffs also cannot state the negligence claims against the outlets. First, plaintiffs
have failed to establish that any of the defendants have produced a product that was
so unhealthy as to be outside a reasonable’s consumer’s expectations. A larger
problem is raised here with regard to probable cause than that pointed out later in
the discussion of McDonalds’ motion to dismiss. Normally, a products liability action
that is brought against retailers, distributors and manufacturers is premised on an
injury that results from the use of a single item that was purchased from a particular
retailer and distributor. [FN7] Here, however, the claim is premised on an overconsumption of products specified and provided by the national defendant,
McDonalds Corp. In order to establish proximate cause, the injury of overconsumption must somehow be tied to the outlets. Presumably, that would require,
in addition to alleging the facts discussed infra, some allegation that plaintiffs ate
primarily at the particular outlet. In the absence of such allegations, a claim against
the outlets cannot stand.
FN7. A typical products liability case would involve a fact pattern where a plaintiff
discovers something unsavory or dangerous in a meal purchased at a McDonalds
outlet, such as, for instance, a chicken head. E.g., “You Deserve a Beak Today,” The
Wash. Post, at C13 (Dec. 1, 2000) (reporting that a Newport News, Virginia woman
found breaded and fried chicken head–including the beak, eyes and comb–in a box
of McDonalds chicken wings). Such a situation clearly ties in the outlet that sold that
particular order of chicken wings. Of course, New York’s specific rules concerning
liability of retailers and distributors also applies, as discussed in Part I.C.
B. McDonalds of New York
The inclusion of McDonalds of New York is more logical than the inclusion of two of
the many McDonalds outlets in New York State. Plaintiffs nonetheless fail to state a
claim for similar reasons discussed above.
First, with regard to the Consumer Protection Act, there is no allegation of any
specific advertisements or public statements arising from McDonalds of New York.
Further, there is no allegation that McDonalds of New York had in its possession any
particular knowledge that consumers did not have that would require it to promulgate
information about the nutritional contents of the products. Therefore, the deceptive
practices claim cannot stand against McDonalds of New York.
Second, the negligence claims fail for the same reasons discussed above and in
greater detail below. There is no allegation that McDonalds of New York has produced
or distributed a product that is so dangerous that its danger is outside the reasonable
understanding of a consumer. Further, the proximate cause issues discussed below
also inhibit this claim. It should be noted that the proximate cause issue discussed
above–tying the injury to a particular outlet–is not as damaging against the claim
against McDonalds of New York. However, plaintiffs must allege that they have eaten
primarily, if not wholly, at McDonalds of New York outlets. In other words, a plaintiff
who has lived for merely a year in New York State–and thus eaten at outlets run by
McDonalds of New York only for one year–may have a difficult time in showing
causation. The absence of explicit allegations to this effect provides a further ground
for dismissal of the Complaint as against McDonalds of New York.
C. The Outlets and McDonalds of New York Are Akin to Retailers and
Distributors of McDonalds Corp.’s Products
In addition, because the outlets and McDonalds of New York are akin to retailers and
distributors of a manufacturer’s products, the negligence claims cannot attach to the
outlets and McDonalds of New York for the following reasons.
[4] Under New York law, [FN8] a wholesaler, retailer or distributor can be held liable
in negligence for the sale of a defective product or for failure to warn only if it fails to
detect a dangerous condition that it could have discovered during the course of a
normal inspection while the product was in its possession. E.g., Sideris v. Simon A.
Rented Servs., 254 A.D.2d 408, 409, 678 N.Y.S.2d 771, 772 (2d Dep’t 1998)
(holding rental service not liable for defective condition because satisfied duty to
inspect) (citing Naples v. City of New York, 34 A.D.2d 577, 578, 309 N.Y.S.2d 663,
666 (2d Dep’t 1970)); Luckern v. Lyonsdale Energy Ltd. Partnership, 281 A.D.2d
884, 887, 722 N.Y.S.2d 632, 637 (4th Dep’t 2001) (failure to warn) (citing
McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 70-71, 181 N.E.2d 430,
433, 226 N.Y.S.2d 407, 413 (1962)).
FN8. As both parties have invoked New York law, there is no need to undertake a
choice of law inquiry. Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 n. 4 (2d
Cir.1998) (citing American Fuel Corp. v. Utah Energy Dev. Co., 122 F.3d 130, 134
(2d Cir.1997); Wm. Passalacqua Builders v. Resnick Developers, 933 F.2d 131, 137
(2d Cir.1991); Walter E. Heller & Co. v. Video Innovations, Inc., 730 F.2d 50, 52 (2d
Cir.1984)).
It is unclear whether the defects in question–high levels of cholesterol, fat, salt and
sugar–were “discoverable” upon “inspection.” [FN9] Given McDonalds’ common
knowledge arguments with regard to the attributes, however, it may be assumed so.
In any case, however, those attributes are later found insufficient as a matter of law
to establish products liability. In order to state a claim against the outlets and
McDonalds of New York, the plaintiffs must allege that they were in possession of
information that the McDonalds Corp. products that they sold were more dangerous
than a reasonable consumer would expect. Plaintiffs have failed to make such
allegations.
FN9. By contrast, to return to the example of the fried chicken head (supra note 7),
such defective product clearly should have been discovered upon inspection.
This lawsuit is not the typical products liability case because, as referred to above,
the issue is over-consumption of products created, manufactured and advertised at a
national level. A McDonalds’ Big Mac is the same at every outlet in the Bronx, New
York; the same at every outlet in the State of New York; and the same at every
outlet throughout the United States. Clearly what is at issue in this lawsuit is the
national menu and national policy of McDonalds Corp., and the plaintiffs’ real beef is
with McDonalds Corp.
As a result, the motion to remand is denied.
II. McDonalds’ Motion to Dismiss
A. Standard of Review
In reviewing a motion to dismiss under Rule 12(b)(6), courts must “accept as true
the factual allegations of the complaint, and draw all inferences in favor of the
pleader.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993) (citing IUE
AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir.1993)). However,
“legal conclusions, deductions, or opinions couched as factual allegations are not
given a presumption of truthfulness.” L’Europeenne de Banque v. La Republica de
Venezuela, 700 F.Supp. 114, 122 (S.D.N.Y.1988). The complaint may only be
dismissed when “it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitled him to relief.” Conley v. Gibson, 355 U.S.
41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also Bernheim v. Litt, 79 F.3d 318,
321 (2d Cir.1996); Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991).
Review must be limited to the complaint and documents attached or incorporated by
reference thereto. Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). In
this context, the Second Circuit has held that a complaint is deemed to “include …
documents that the plaintiffs either possessed or knew about and upon which they
relied in bringing the suit.” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000).
Plaintiffs, however, in their opposition papers rely on facts outside the pleading. The
Court of Appeals has made clear that where a District Court is provided with
materials outside the pleadings in the context of a 12(b)(6) motion to dismiss, it has
two options: the court may exclude the additional materials and decide the motion on
the complaint alone or convert the motion to one from summary judgment under
Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material.
Fed.R.Civ.P. 12(b). Kopec v. Coughlin, 922 F.2d 152, 154 (2d Cir.1991) (quoting
Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d
Cir.1988)). The Court has not converted this motion to one for summary judgment
and thus will not consider statements outside the pleadings in reaching its holding.
B. Counts I and II: Plaintiffs Fail to State a Claim Pursuant to N.Y. Gen. Bus.
Law §§ 349 and 350
Counts I and II allege that McDonalds violated the New York Consumer Protection
Act, N.Y. Gen. Bus. Law §§ 349 and 350, by (1) deceptively advertising their food as
not unhealthful and failing to provide consumers with nutritional information (Count
I) and (2) inducing minors to eat at McDonalds through deceptive marketing ploys
(Count II). [FN10]
FN10. The Complaint also asserts that such actions violated the City of New York’s
Consumer Protection Law, Admin. Code, Chapter 5, 20-700 et seq. McDonalds
argues, and the plaintiffs do not contest, that such actions may only be brought by
the Commissioner of Consumer Affairs. E.g., Galerie Furstenberg v. Philip Coffaro,
697 F.Supp. 1282, 1292 (S.D.N.Y.1988). Therefore, Counts I and II are dismissed to
the extent they assert claims pursuant to the Administrative Code.
[5] [6] [7] [8] Section 349 of New York General Business Law makes unlawful
“[d]eceptive acts or practices in the conduct of any business, trade or commerce or in
the furnishing of any service in this state.” N.Y. Gen. Bus. Law § 349(a). [FN11]
Section 350 prohibits “[f]alse advertising in the conduct of any business.” N.Y. Gen.
Bus. Law § 350. To state a claim for deceptive practices under either section, a
plaintiff must show: (1) that the act, practice or advertisement was consumeroriented; (2) that the act, practice or advertisement was misleading in a material
respect, and (3) that the plaintiff was injured as a result of the deceptive practice, act
or advertisement. E.g., Stutman v. Chem. Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892,
731 N.E.2d 608 (2000); St. Patrick’s Home for Aged and Infirm v. Laticrete Intern.,
Inc., 264 A.D.2d 652, 655, 696 N.Y.S.2d 117, 122 (1st Dep’t 1999); BNI N.Y. Ltd. v.
DeSanto, 177 Misc.2d 9, 14, 675 N.Y.S.2d 752, 755 (N.Y.City Ct.1998). See also
Berrios v. Sprint Corp., 1998 WL 199842, at *3 (E.D.N.Y. March 16, 1998). The
standard for whether an act or practice is misleading is objective, requiring a showing
that a reasonable consumer would have been misled by the defendant’s conduct.
Marcus v. AT&T, 138 F.3d 46, 64 (2d Cir.1998); Oswego Laborers’ v. Marine Midland
Bank, 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529, 533, 647 N.E.2d 741 (1995). Omissions,
as well as acts, may form the basis of a deceptive practices claim. Stutman, 95
N.Y.2d at 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (citing Oswego Laborers’, 85 N.Y.2d
at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 (delineating different inquiry in case of
claim of deceit by omission)). Further, traditional showings of reliance and scienter
are not required under the act. Blue Cross and Blue Shield of New Jersey, Inc. v.
Philip Morris, Inc., 178 F.Supp.2d 198, 231 (E.D.N.Y.2001) (Weinstein, J.).
FN11. As indicated by the statute’s “expansive” language, section 349 was intended
to be broadly applicable, extending far beyond the reach of common law fraud. Blue
Cross and Blue Shield of New Jersey, 178 F.Supp.2d at 230-31 (upholding claim
under section 349 that tobacco companies engaged in scheme to distort public
knowledge concerning risks of smoking); Gaidon v. Guardian Life Ins. Co. of Am., 94
N.Y.2d 330, 343, 704 N.Y.S.2d 177, 182, 725 N.E.2d 598, 603 (1999) (“In contrast
to common- law fraud, General Business Law § 349 is a creature of statute based on
broad consumer-protection concerns.”); Karlin v. IVF Am., Inc., 93 N.Y.2d 282, 291,
690 N.Y.S.2d 495, 498, 712 N.E.2d 662, 665 (1999) (“The reach of th[is] statut[e]
‘provide[s] needed authority to cope with the numerous, ever-changing types of false
and deceptive business practices which plague consumers in our State.’ “) (quoting
N.Y. Dept. of Law, Mem. to Governor, 1963 N.Y. Legis. Ann., at 105).
McDonalds argues that plaintiffs’ claims under §§ 349 and 350 fail because (1) they
are not plead with sufficient specificity, and (2) acts or practices cannot be deceptive
if the consuming public is already aware of the “concealed” characteristics and
therefore is not deceived. McDonalds also argued for the first time in its reply papers
that plaintiffs’ claims are pre- empted by federal law. Although raised last, the preemption argument will be addressed first.
1. Federal Pre-Emption
McDonalds raises for the first time in its reply brief [FN12] an argument that its
compliance with (or rather, exemption from) the Federal Nutritional Labeling and
Education Act, 21 U.S.C. § 343(q), bars the plaintiffs’ contentions that McDonalds’
failure to provide nutritional information is deceptive. Defs.’ Reply Mem. at 24.
Section 343(q) requires labels with specified nutritional values to be attached to all
packaged food, but it specifically exempts restaurants from this requirement. 21
U.S.C. § 343(q)(5)(A)(i) (labeling requirements “shall not apply to food which is
served in restaurants or other establishments in which food is served for immediate
human consumption or which is sold for sale or use in such establishments”).
McDonalds thus argues that if Congress determined that restaurants should not have
to label their food, McDonalds cannot be made to do so indirectly, pursuant to a New
York State statute.
FN12. The argument will be addressed although raised tardily because the plaintiffs
had an opportunity to respond in their sur-reply brief, because the §§ 349 and 350
claims are to be dismissed on other grounds in any case, and because it is held that
the claims are not pre- empted.
State law that conflicts with federal law is without effect. Cipollone v. Liggett Group,
Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (citing
Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)).
However, “the historic police powers of the States [are] not to be superseded by …
Federal Act unless that [is] the clear and manifest purpose of Congress.” Id.
(brackets in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67
S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)).
Section 343-1, the NLEA’s pre-emptive provision, provides that no state may require
nutrition labeling for food in interstate commerce that is not identical to that
prescribed by the NLEA. 21 U.S.C. § 343-1(a)(4); see also Morelli v. Weider Nutrition
Group, Inc., 275 A.D.2d 607, 607, 712 N.Y.S.2d 551 (1st Dep’t 2000). This provision
would seem to support McDonalds’ argument. However, subsection (4) of the preemptive provision specifically permits states to require nutrition labeling of food that
is exempt under subclause (i) or (ii) of 21 U.S.C. § 343(q)(5)(A). 21 U.S.C. § 3431(a)(4). As noted above, § 343(q)(5)(A)(i) is the very provision on which McDonalds
relies to state that it has “complied” with federal regulations and that the State of
New York cannot make it do anything more.
[9] Therefore, § 343-1(a)(4) does not expressly bar nutrition labeling on restaurant
foods either directly or, as plaintiffs seek to do in this action based on a New York
state statute, indirectly. A finding that a lack of nutritional labeling on McDonalds’
products violates §§ 349 and 350 therefore is explicitly not pre-empted by the NLEA.
In fact, in discussing its rules and regulations implementing the NLEA, the Food and
Drug Administration recognized that states could protect their consumers in this
manner. FDA, Food Labeling; General Requirements for Health Claims for Food, 58 FR
2478, 2517, 1993 WL 1547 (1993) (“States remain free, however, to ensure under
their own consumer protection laws that menus do not provide false or misleading
information.”). McDonalds’ late-breaking arguments are accordingly rejected.
2. Requirements of §§ 349 and 350
McDonalds argues that plaintiffs’ claims under §§ 349 and 350 fail because (1) they
are not plead with sufficient specificity, and (2) acts or practices cannot be deceptive
if the consuming public is already aware of the “concealed” characteristics and
therefore is not deceived.
[10] A plaintiff must plead with specificity the allegedly deceptive acts or practices
that form the basis of a claim under the Consumer Protection Act. E.g., Weaver v.
Chrysler Corp., 172 F.R.D. 96, 100 (S.D.N.Y.1997) (“In pleading a claim under the
Consumer Protection Act, a plaintiff is required to set forth specific details regarding
the allegedly deceptive acts or practices.”); Moses v. Citicorp Mortg. Inc., 982
F.Supp. 897, 903 (E.D.N.Y.1997) (“Conclusory allegations have been held insufficient
to state a claim under section 349.”); Grand Gen. Store, Inc. v. Royal Indem. Co.,
No. 93 Civ. 3741 (CSH), 1994 WL 163973, at *4 (S.D.N.Y. April 22, 1994)
(discussing violation of Insurance Law alleged to be deceptive practice under § 349).
See also Small v. Lorillard Tobacco Co., 252 A.D.2d 1, 9, 679 N.Y.S.2d 593, 600 (1st
Dep’t 1998) (“plaintiffs do not point to any specific advertisement or public
pronouncement”).
For instance, one of the cases on which plaintiffs rely, Blue Cross and Blue Shield of
New Jersey, 178 F.Supp.2d at 269-70, provides examples of such specific
statements. The case involved a claim under § 349 against cigarette manufacturers,
alleging deceptive practices. In the 175-page complaint, filed on April 29, 1998, the
plaintiffs included a number of specific allegations of deceptive acts and practices,
including the following:
• a statement that “no causal link between smoking and disease has been
established” (Blue Cross Complaint, ¶ 112);
• a letter to a grade school principal stating that “scientists don’t know the cause or
causes of the chronic diseases reported to be associated with smoking” (Id., ¶ 113);
• testimony under oath by a tobacco executive that he did not believe that people die
from smoking (Id., ¶ 114);
• Congressional testimony by tobacco executives stating that tobacco companies did
not manipulate, add, control or restore nicotine during the manufacturing process
(Id., ¶ 219);
• advertisements denying that tobacco companies believed cigarette smoking was
addictive (Id., ¶ 220); and
• statements in newspaper advertisements that claimed “Phillip Morris does not
believe that cigarette smoking is addictive” (Id., ¶ 221).
Many of the practices were found to have supported liability in the opinion on which
the plaintiffs rely. Blue Cross and Blue Shield of New Jersey, 178 F.Supp.2d at 26970. Because such statements are necessarily “consumer- oriented” and thus in the
public domain, plaintiffs should be able similarly to point to the specific statements
that form the basis of their claims pursuant to §§ 349 and 350.
a. Count I
In Count I, plaintiffs allege that McDonalds violated the act both by commission (e.g.,
stating that its products were nutritious, encouraging consumers to “supersize” their
meals without disclosing the negative health effects) and by omission (e.g., failing to
provide nutritional information for products).
i. Deceptive Acts
Because the Complaint does not identify a single instance of deceptive acts, Count I
shall be dismissed to the extent it alleges deceptive practices of commission in
violation of §§ 349 and 350.
[11] [12] Although the Court is limited to allegations in the Complaint for the
purposes of deciding this motion, Kramer, 937 F.2d at 773, it is worth noting that,
even in their opposition papers, the plaintiffs only cite to two advertising campaigns
(“McChicken Everyday!” and “Big N’ Tasty Everyday”) and to a statement on the
McDonalds’ website that “McDonalds can be part of any balanced diet and lifestyle.”
These are specific examples of practices, act or advertisements and would survive a
motion to dismiss based on lack of specificity. Whether they would survive a motion
to dismiss on the substantive issue of whether such practices, act and advertisements
are deceptive is less clear. The two campaigns encouraging daily forays to McDonalds
and the statement regarding making McDonalds a part of a balanced diet, if read
together, may be seen as contradictory–a balanced diet likely does not permit eating
at McDonalds everyday. [FN13] However, the advertisements encouraging persons to
eat at McDonalds “everyday!” do not include any indication that doing so is part of a
well-balanced diet, and the plaintiffs fail to cite any advertisement where McDonalds
asserts that its products may be eaten for every meal of every day without any ill
consequences. Merely encouraging consumers to eat its products “everyday” is mere
puffery, [FN14] at most, in the absence of a claim that to do so will result in a
specific effect on health. [FN15] As a result, the claims likely would not be actionable
if alleged. See Cytyc Corp. v. Neuromedical Sys. Inc., 12 F.Supp.2d 296, 301
(S.D.N.Y.1998) (“the sort of subjective claims of product quality at issue here are
nonactionable”); Lipton v. Nature Co., 71 F.3d 464, 474 (2d Cir.1995) (finding claim
of “thorough” research to be “mere puffery” and not actionable as false advertising
under § 43(a) of Lanham Act); Chevy’s Int’l Inc. v. Sal De Enters., Inc., 697 F.Supp.
110, 112 (E.D.N.Y.1988) (“that characterization, even if factually incorrect, was
standard industry puffing that does not rise to the level of consumer deception”).
FN13. Of course, some people manage to eat at McDonalds everyday with no
apparent ill effects. Witness the well-publicized fact that a Wisconsin man, Don
Gorske,
rske, has eaten a Big Mac a day for approximately 30 years, while maintaining his
svelte 178-pound, six-foot frame and a modest cholesterol level. E.g., “Man Eats His
18,000th Big Mac,” available at www.click2houston.com/sh/news/stories/nat -news105595720011106191107.html (last visited Jan. 6, 2003) (reporting that Gorske set
world record for number of Big Macs eaten while maintaining modest cholesterol level
of 155); “Deserving a Break–and Getting It Every Day,” AFSCME website, available
at www.afscme.org/publications/public_employee/2002/pejf0221.htm (last visited
Jan. 6, 2003) (noting that Gorske has consumed more than 800 heads of lettuce, 820
onions, 1,900 whole pickles, 563 pounds of cheese, 100 gallons of special sauce, 14
1/2 cattle, and 6.25 million sesame seeds, but that he skips breakfast and dinner and
only eats lunch of Big Mac, fries and Coke).
FN14. Puffery is defined as exaggerated general statements that make no specific
claims on which consumers could rely. E.g., Coastal Communs. Corp. v. Adams/Laux
Co., No. 96 Civ. 1369(JSM), 1996 WL 546880, at *1 1996 U.S. Dist. LEXIS 14081, at
*2-*3 (S.D.N.Y. Sept. 24, 1996) (citing Cook, Perkiss & Liehe v. Northern California
Collection Serv., 911 F.2d 242, 246 (9th Cir.1990)).
FN15. For example, one of McDonalds’ competitors, SUBWAY Restaurants, has
engaged in just such a campaign, highlighting that it is the “healthier alternative to
fatty fast food.” SUBWAY website, press release (Nov. 18, 1999), available at
www.subway.com/society/public_rel/pcr_ press/111899pr.htm (last visited Jan. 6,
2003). Furthermore, it has hired as a spokesman Jared S. Fogle and has widely
publicized the results of Mr. Fogle’s “SUBWAY diet.” Over the course of less than a
year, Fogle went from 425 pounds to 190 pounds by eating his only meals from
SUBWAY’s low- fat menu. SUBWAY website, “Jared’s Statistics,” available at
www.subway.com/society/foj/jared_stats.stm (last visited Jan. 6, 2003). Plaintiffs,
however, have not referred the Court to any similar advertisements by McDonalds.
On December 11, 2002, the Court accepted from plaintiffs a number of documents
concerning actions taken against McDonalds’ advertising practices in the late 1980’s
by the state attorneys general from several states, including New York State. While
any claim based on the advertisements at issue likely would be time barred, Morelli v.
Weider Nutrition Group, Inc., 275 A.D.2d 607, 608, 712 N.Y.S.2d 551 (1st Dep’t
2000) (three-year limitations period for deceptive practices actions), a review of
those advertisements and the state attorney generals’ analysis of them may assist
plaintiffs in shaping a claim under the Consumer Protection Act. For instance, by
letter dated April 24, 1987 (the “Abrams Letter”), Robert Abrams, the then-Attorney
General of the State of New York, addressed several specific allegedly deceptive
claims in McDonalds advertisements:
1. The advertisement discussing salt (sodium) content in foods says, “Our sodium is
down across the menu.” (emphasis added) This is not true. That same advertisement
lists four products (regular fries, regular cheeseburger, 6- piece McNuggets, and
vanilla milkshake), none of which have had their sodium content lowered in the past
year.
2. The advertisement touting the “real” milk in McDonald’s shakes says that they
contain “Wholesome milk, natural sweeteners, a fluid ounce of flavoring, and
stabilizers for consistency. And that’s all.” In fact, that’s not really all. McDonald’s
own ingredient booklet shows that a typical shake, such as vanilla or strawberry,
actually contains artificial flavor and sodium benzoate and sodium
hexametaphosphate, two chemical preservatives. This advertisements tells only part
of the story.
3. The cholesterol advertisement emphasizes the relatively low (29 milligrams)
cholesterol content of the regular hamburger, but does not even mention the
saturated fat content, a fact much more relevant to those with cause for concern
about heart disease.
Abrams Letter, at 1-2.
ii. Deceptive Omissions
The second subset of Claim I focuses on McDonalds’ failure to label its foods with
their nutritional content. Unlike above, the plaintiffs clearly have outlined the
allegedly deceptive practice: the fact that McDonalds failed to post nutritional labeling
on the products and at points of purchase. However, because this is a purportedly
deceptive act based on an omission, it is not sufficient for the plaintiffs to point to the
omission alone. They must also show why the omission was deceptive–a duty they
have shunned.
The New York Court of Appeals has addressed what § 349 requires in a situation
involving an allegedly deceptive omission. Oswego Laborers’ Local 214 Pension Fund
v. Marine Midland Bank, 85 N.Y.2d 20, 25-26, 623 N.Y.S.2d 529, 532, 647 N.E.2d
741 (1995) (Kaye, C.J.) involved a claim that defendant bank acted deceptively in
not informing the plaintiff that for-profit entities would not receive interest on
accounts in excess of $100,000. The Court reasoned that in a case involving
omissions, “the statute surely does not require businesses to ascertain consumers’
individual needs and guarantee that each consumer has all relevant information
specific to its situation.” Id. It provided an exception, however, “where the business
alone possesses material information that is relevant to the consumer and fails to
provide this information.” Id. It was thus held that the plaintiffs had stated a cause of
action, but that liability would turn on whether the plaintiffs possessed, or could
reasonably have obtained, the information regarding interest on for- profit entities’
accounts in excess of $100,000. Id. at 27, 623 N.Y.S.2d 529, 647 N.E.2d 741; see
also Super Glue v. Avis Rent A Car Sys. Inc., 159 A.D.2d 68, 71, 557 N.Y.S.2d 959,
961 (2d Dep’t 1990) (rejecting claim for deceptive practices based on Avis’s failure to
disseminate information that its Collision Damage Waiver insurance duplicated the
plaintiffs’ own automobile insurance because Avis had no duty to inform where the
customer with CDW coverage in place was in a far better position to ascertain the
relevant conditions and exclusions relating to his or her coverage than Avis).
The plaintiffs fail to allege that the information with regard to the nutritional content
of McDonalds’ products was solely within McDonalds’ possession or that a consumer
could not reasonably obtain such information. [FN16] It cannot be assumed that the
nutritional content of McDonalds’ products and their usage was solely within the
possession of McDonalds.
FN16. Although the plaintiffs do not allege it as part of Count I or II, the allegations
contained in Count V–that McDonalds serves addictive products–would present a
closer question as to a deceptive omission in violation of the Act, as such information
is not available to the public.
b. Count II
[13] Count II, which focuses on representations targeting children, fails for the same
reasons discussed above. The Complaint does not identify a single specific
advertisement, promotion or statement directed at infant consumers, and Count II
must be dismissed in the absence of such specificity.
As with the first subset of Count I, the plaintiffs have attempted to point out potential
specific acts in their opposition papers. They focus on two specific promotions geared
toward minors: (1) a plastic beef steak figure named “Slugger,” accompanied by a
nutritional pamphlet encouraging children to eat two servings a day in the meat
group to “make it easier to do things like climb higher and ride your bike farther,”
(Pls.’ Mem. at 48-49 n. 53) and (2) promotions of the “Mighty Kids Meal,” a soupedup Happy Meal, that equate eating the larger-portioned meal with being more grownup. With regard to the latter, plaintiffs still fail to identify specific exhortations or
promises associated with the Mightier Kids Meals, and such bare allegations would
also be dismissed for lack of specificity were they included in an amended complaint.
In any case, if plaintiffs are only concerned about the appellation “Mightier Kids
Meal,” such name is seemingly mere puffery, rather than any claim that children who
eat a “Mightier Kids Meal” will become mightier. The former is sufficiently specific,
were it included in the Complaint, to survive a motion to dismiss for failure to state a
claim with sufficient specificity. Of course, plaintiffs would still have to set forth
grounds to establish that the promotion was deceptive and that they suffered some
injury as a result of that particular promotion.
The plaintiffs also raise for the first time in their opposition papers an argument that
McDonalds has acted duplicitously in claiming that it is committed to providing
nutritional information to its customers. This argument also fails for lack of
specificity; the plaintiffs do not cite to a particular recent occasion [FN17] where
McDonalds has stated such commitment. Even if this allegation were to be included in
the Complaint, its deceptive nature is unclear. Plaintiffs admit that McDonalds has
made its nutritional information available online and do not contest that such
information is available upon request. Unless McDonalds has specifically promised to
provide nutritional information on all its products and at all points of purchase,
plaintiffs do not state a claim.
FN17. As discussed above, plaintiffs have produced a number of documents from the
late 1980’s concerning discussions between McDonalds and state attorneys general,
including the attorney general of the State of New York, requiring the discontinuance
of certain advertising practices. As also discussed above, any cause of action based
on such statements would likely be barred by the statute of limitations. E.g., Morelli
v. Weider Nutrition Group, Inc., 275 A.D.2d 607, 608, 712 N.Y.S.2d 551 (1st Dep’t
2000) (three-year limitations period for deceptive practices actions). The same is true
for the advertisements plaintiffs cite to from McDonalds v. Steele, No.1990-MNo.S724, presented in the United Kingdom, Royal Courts of Justice. Pls.’ Mem. at 7.
III. Counts III, IV and V: Negligence Claims
The plaintiffs’ common law claims against McDonalds sound in negligence, alleging
that McDonalds was negligent in manufacturing and selling its products and negligent
in failing to warn consumers of the potential hazards of eating its products.
McDonalds argues that each of these claims fail as a matter of law because (1) the
attributes about which plaintiffs complain were so well- known that McDonalds had no
duty either to eliminate such attributes or to warn plaintiffs about them, and (2) the
plaintiffs cannot establish proximate cause.
A. Count III: Inherently Dangerous Food
1. Whether McDonalds Had a Duty to Plaintiffs Because the Dangers Were
Not Within Common Knowledge
In addition to the allegations in the Complaint with regard to McDonalds’ duty,
arguments raised for the first time in the papers on this motion will be addressed.
a. Allegations Within the Complaint
Count III essentially alleges that McDonalds’ products are inherently dangerous
because of the inclusion of high levels of cholesterol, fat, salt and sugar. McDonalds
argues that because the public is well aware that hamburgers, fries and other fast
food fare have such attributes, McDonalds cannot be held liable. E.g., Olliver v.
Heavenly Bagels, Inc., 189 Misc.2d 125, 127, 729 N.Y.S.2d 611, 613 (2001) (“Where
as here a product by its very nature has a dangerous attribute, liability is imposed
only when the product has an attribute not reasonably contemplated by the
purchaser or is unreasonably dangerous for its intended use.”) (quoting Huppe v.
Twenty- First Century Restaurants, 130 Misc.2d 736, 738, 497 N.Y.S.2d 306 (1985)
(citing Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479,
426 N.Y.S.2d 717, 720, 403 N.E.2d 440 (1980))).
McDonalds cites to the Restatement (Second) of Torts and claims that because
plaintiffs’ claims hinge on injuries resulting from excessive consumption of food, they
face a high bar indeed:
Many products cannot possibly be made entirely safe for all consumption, and any
food or drug necessarily involves some risk of harm, if only from over- consumption.
Ordinary sugar is a deadly poison to some diabetics, and castor oil found use under
Mussolini as an instrument of torture. That is not what is meant by “unreasonably
dangerous” …. The article sold must be dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics. Good whiskey is not
unreasonably dangerous merely because it will make some people drunk, and is
especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount
of fuel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous
merely because the effects of smoking may be harmful; but tobacco containing
something like marijuana may be unreasonably dangerous. [FN18] Good butter is not
unreasonably dangerous merely because, if such be the case, it deposits cholesterol
in the arteries and leads to heart attacks; but bad butter, contaminated with
poisonous fish oil, is unreasonably dangerous.
FN18. McDonalds, when citing the above passage, did not quote the sentence
concerning “good tobacco.” Likely this is because the authors of the Restatement,
writing in the 1960’s, did not envision the successful tobacco litigation and
settlements of the 1990’s. See Comment, Forcing Round Classes Into Square Rules:
Attempting Certification of Nicotine Addiction-as-Injury Class Actions Under Federal
Rule of Civil Procedure 23(b)(3), 29 U. Tol. L.Rev. 699, 700-01 (Summer 1998)
(discussing failure of tobacco litigation from the 1950’s until 1994 when new theory
of addiction-as-injury emerged based on ” ‘decades-long industry effort to conduct,
control, and ultimately suppress’ the results of the industry’s extensive research into
tobacco’s addiction potential and the industry’s ultimately exploitation of this
potential”) (citation omitted); Jon D. Hanson & Kyle D. Logue, The Costs of
Cigarettes: The Economic Case for Ex Post Incentive Based Regulation, 107 Yale L.J.
1163, 1169-71 (March 1998) (discussing unsuccessful waves of litigation up until
recently and that recent cases–as a result, inter alia, of revelations that tobacco
companies knew cigarettes were addictive and manipulated the addictiveness
through controlling nicotine levels–“pose a considerable threat to the cigarette
industry”); see also, e.g., Burton v. R.J. Reynolds Tobacco Co., 205 F.Supp.2d 1253,
1254-55 (D.Kan.2002) (noting jury verdict in favor of plaintiff’s claims on failure to
warn, negligent testing and research and fraudulent concealment based on assertions
that defendant cigarette manufacturer caused his peripheral vascular disease and
addiction).
This lack of foresight suggests that perhaps the Restatement’s vision concerning
over-consumption may be rendered obsolete. Seemingly “good” products may be
manipulated such that they are more akin to fuel-oil contaminated whiskey and
marijuana-laced cigarettes.
Restatement (2d) of Torts, § 402A, cmt. i. [FN19]
FN19. Relevant to Count IV, it also stated that “a seller is not required to warn with
respect to products, or ingredients in them, which are only dangerous, or potentially
so, when consumed in excessive quantity, or over a long period of time, when the
danger, or potentiality of danger, is generally known and recognized.” Id., § 402A,
cmt. j; see also Plummer v. Lederle Labs., 819 F.2d 349, 356 n. 4 (2d Cir.1987).
When asked at oral argument to distinguish this case from those cases involving
injuries purportedly caused by asbestos exposure, counsel for the defendants stated
that in this case, the dangers complained of have been well- known for some time,
while the dangers of asbestos did not became apparent until years after exposure.
The Restatement provision cited above confirms this analysis, recognizing that the
dangers of over-consumption of items such as alcoholic beverages, or typically highin-fat foods such as butter, are well-known. Thus any liability based on overconsumption is doomed if the consequences of such over-consumption are common
knowledge.
It is worth noting, however, that the Restatement provision cited above included
tobacco as an example of products such as whiskey and butter, the unhealthy overconsumption of which could not lead to liability. As the successful tobacco class action
litigation and settlements have shown, however, the fact that excessive smoking was
known to lead to health problems did not vitiate liability when, for instance, tobacco
companies had intentionally altered the nicotine levels of cigarettes to induce
addiction. E.g., Burton v. R.J. Reynolds Tobacco Co., 205 F.Supp.2d 1253, 1254-55
(D.Kan.2002) (noting jury verdict in favor of plaintiff’s claims on failure to warn,
negligent testing and research and fraudulent concealment based on assertions that
defendant cigarette manufacturer caused his peripheral vascular disease and
addiction).
[14] Thus, in order to state a claim, the Complaint must allege either that the
attributes of McDonalds products are so extraordinarily unhealthy that they are
outside the reasonable contemplation of the consuming public or that the products
are so extraordinarily unhealthy as to be dangerous in their intended use. The
Complaint–which merely alleges that the foods contain high levels of cholesterol, fat,
salt and sugar, and that the foods are therefore unhealthy–fails to reach this bar. It
is well-known that fast food in general, and McDonalds’ products in particular, contain
high levels of cholesterol, fat, salt, and sugar, and that such attributes are bad for
one. [FN20]
FN20. E.g., John DeMers, “Fat Chance–Fast-food diet increases odds of obesity,”
Houston Chron. at 1, 2001 WL 23635886 (Sept. 27, 2001) (“The more fast food there
was in America, the fatter America became. And the more likely a segment of the
population was to devour fast food regularly, the more it became fatter than any
other segment. Though we are ultimately responsible for what we eat, fast food was
‘making’ us fat.”); Caroline Foulkes, “Food & drink–Can’t do the cooking? Burger it.”
Birmingham Post, at P46 (9/21/02) (“Doctors have been warning us of the dangers of
eating too much fast food since burger outlets first became popular in Britain in the
1960’s. But their advice has gone unheeded.”); Mark Kaufman, Washington Post,
Wed. Oct. 16, 2002 (“The fast-food industry
generally argues that its products are a healthful part of a balanced diet, but critics
say that heavy advertising of high-calorie fried foods encourages people to eat
unwisely.”); Barbara F. Meltz, “Just Say ‘Phooey’ to the Food/Fun Link,” Boston
Globe, at H.6 (11/14/02), 2002 WL 101983569 (“If children eat fast food once a
week, it likely will not contribute to a health problem; if they eat it three or more
times a week, it might.”).
Of course, there are competing claims that cholesterol, fat, salt and sugar may not be
so bad after all. E.g., Gary Taube, What If It’s All Been a Big Fat Lie?, New York
Times Magazine (July 7, 2002) (arguing that the high-fat Atkins Diet is more
successful than low-fat, high-carbohydrate diets), available at www.
nytimes.com/2002/07/07/magazine/ 07FAT.html (last visited Jan. 6, 2003). But see
Bonnie Liebman, Big Fat Lies: The Truth About the Atkins Diet, Nutrition Action
Health Letter 1 (November 2002) (providing point-by-point refutation of Taube’s
claims).
This rule makes sense in light of the policy issues discussed at the outset of this
opinion. If a person knows or should know that eating copious orders of supersized
McDonalds’ products is unhealthy and may result in weight gain (and its concomitant
problems) because of the high levels of cholesterol, fat, salt and sugar, it is not the
place of the law to protect them from their own excesses. Nobody is forced to eat at
McDonalds. (Except, perhaps, parents of small children who desire McDonalds’ food,
toy promotions or playgrounds and demand their parents’ accompaniment. [FN21])
Even more pertinent, nobody is forced to supersize their meal or choose less healthy
options on the menu.
FN21. See Testimony of Juliet Gellatley, in McDonalds v. Steele (cited in Pls.’ Mem. at
47-48) (“[S]ome younger children openly admitted that they pester their parents to
take them to McDonalds, even if the parent is not keen.”).
As long as a consumer exercises free choice with appropriate knowledge, liability for
negligence will not attach to a manufacturer. It is only when that free choice becomes
but a chimera–for instance, by the masking of information necessary to make the
choice, such as the knowledge that eating McDonalds with a certain frequency would
irrefragably cause harm–that manufacturers should be held accountable. Plaintiffs
have failed to allege in the Complaint that their decisions to eat at McDonalds several
times a week were anything but a choice freely made and which now may not be
pinned on McDonalds.
b. Allegations Outside the Complaint
In an attempt to save their common law causes of action, plaintiffs raise four
arguments that are not alleged in the Complaint to show that McDonalds has a duty
toward plaintiffs: (1) McDonalds’ products have been processed to the point where
they have become completely different and more dangerous than the run-of-the-mill
products they resemble and than a reasonable consumer would expect; (2) plaintiffs
have an allergic sensitivity to McDonalds’ products; (3) McDonalds should know that
consumers would misuse products (presumably by eating in larger quantities or at
greater frequencies than is healthy); and (4) policy arguments based upon the
Nutrition Labeling and Education Act. While the Court may only consider allegations
in the Complaint for the purposes of this motion, Kramer, 937 F.2d at 773, these
arguments are important in determining whether the plaintiffs should have the right
to amend their complaint, as they point to potentially viable claims, and thus will
briefly be addressed.
i. Plaintiffs’ Claim that McDonalds’ Products Are More Dangerous Than the
Average Hamburger, Fries and Shake
For the first time in their opposition papers, the plaintiffs attempt to show that overconsumption of McDonalds is different in kind from, for instance, over-consumption of
alcoholic beverages or butter because the processing of McDonalds’ food has created
an entirely different–and more dangerous–food than one would expect from a
hamburger, chicken finger or french fry cooked at home or at any restaurant other
than McDonalds. They thus argue that McDonalds’ food is “dangerous to an extent
beyond that which would be contemplated by the ordinary consumer who purchases
it, with the ordinary knowledge common to the community as to its characteristics.”
Restatement (Second) Torts § 402A, cmt. i. If true, consumers who eat at McDonalds
have not been given a free choice, and thus liability may attach.
The argument is akin to one that might be used in a products liability case regarding
genetically engineered food, [FN22] should any injuries result from the excessive
consumption thereof. The genetically modified soybean, potato and ear of corn
[FN23] look exactly like the organically grown soybean, spud and corn. Yet those
plants have been substantively, if subtly, modified into something else. Any dangers
from eating a genetically modified plant are latent–and thus not commonly well
known–in the absence of a label revealing that the object that looks like a soybean is
actually a soybean carrying a brazil nut protein. [FN24]
FN22. Genetic engineering is the process by which scientists make modifications of
the deoxyribonucleic acid (DNA) of an organism by uniting it with plant or animal
genes with particular traits. Heather N. Ellison, Genetically Modified Organisms: Does
the Current Regulatory System Compromise Consumer Health?, 10 Penn. St. Envtl.
L.Rev. 345, 346
(Summer 2002). Recombinant DNA (rDNA) techniques permit a scientist to identify
and copy a specific gene and introduce the gene copies into recipient organisms, such
as a food crop. Id.; see also Lara Beth Winn, Special Labeling Requirements for
Genetically Engineered Food: How Sound Are the Analytical Frameworks Used by FDA
and Food Producers?, 54 Food & Drug L.J. 667, 668 (1999). This is done to introduce
attributes of the transferor organism into the transferee organism. Id. Genetic
engineering has resulted, for example, in a tomato that delays softening, an insectprotected potato and a virus-resistant squash. Jeffrey K. Francer, Frankenstein Foods
or Flavor Savers?: Regulating Agricultural Biotechnology in the United States and
European Union, 7 Va. J. Soc. Pol’y & L. 257, 262 (Winter 2000). In the year 2000,
genetically modified seeds supplied approximately 38 percent of the United States
corn crop, 57 percent of the soybean crop and 70 percent of the canola crop. Kelly A.
Leggio, Limitations on the Consumer’s Right to Know: Settling the Debate Over
Labeling of Genetically Modified Foods in the United States, 38 San Diego L.Rev. 893,
905 (Summer 2001). Although genetic engineering thus far has apparently only been
beneficial, there are concerns that genetically modified foods could have far-reaching
health effects that have not been accounted for, such as causing allergic reactions
and creating antibiotic resistance in consumers. Francer, supra, at 292-294;
Leggio, supra, at 903.
FN23. Although not relevant to this case, it is worthwhile to note that McDonalds has
had experience with the fear of genetically modified foods. In the fall of 1999,
protesters dumped manure and rotting vegetables outside of McDonalds restaurants
in France, accusing McDonalds of contaminating their food with genetically modified
crops. Francer, supra, at 258. In light of the protests, British McDonalds removed
genetically modified foods from the menu that year, id., and in the United States in
the spring of 2000, McDonalds informed its french fry suppliers that it would no
longer purchase frozen french fries made from genetically engineered potatoes, in
response to the consumer backlash in Europe. Schlosser, supra, at 269.
FN24. Pioneer Hi-Bred International, an Iowa agricultural life sciences company,
added a Brazil-nut protein to soybeans in order to enhance the soybean’s growing
power. While completing safety testing, researchers discovered that the soybean also
retained the Brazil nut’s human allergenic traits. Although the soybeans were
intended only for use as animal feed, the product was not marketed due to fears of
human consumption. Francer, supra, at 292.
Similarly, plaintiffs argue that McDonalds’ products have been so altered that their
unhealthy attributes are now outside the ken of the average reasonable consumer.
They point to McDonalds’ ingredient lists to show that McDonalds’ customers
worldwide are getting much more than what is commonly considered to be a chicken
finger, a hamburger, or a french fry. Schlosser, supra, at 7 (“Foods that may look
familiar have in fact been completely reformulated.”).
For instance, Chicken McNuggets, rather than being merely chicken fried in a pan,
are a McFrankenstein creation of various elements not utilized by the home cook. A
Chicken McNugget is comprised of, in addition to chicken:
water, salt, modified corn starch, sodium phosphates, chicken broth powder (chicken
broth, salt and natural flavoring (chicken source)), seasoning (vegetable oil, extracts
of rosemary, mono, di- and triglycerides, lecithin). Battered and breaded with water,
enriched bleached wheat flour (niacin, iron, thiamine, mononitrate, riboflavin, folic
acid), yellow corn flour, bleached wheat flour, modified corn starch, salt, leavening
(baking soda, sodium acid pyrophosphate, sodium aluminum phosphate,
monocalcium phosphate, calcium lactate), spices, wheat starch, dried whey, corn
starch. Batter set in vegetable shortening. Cooked in partially hydrogenated
vegetable oils, (may contain partially hydrogenated soybean oil and/or partially
hydrogenated corn oil and/or partially hydrogenated canola oil and/or cottonseed oil
and/or corn oil). TBHQ and citric acid added to help preserve freshness.
Dimethylpolysiloxane added as an anti-foaming agent.
Pls.’ Mem. at 23 (citing McDonalds ingredient list). In addition, Chicken McNuggets,
while seemingly a healthier option than McDonalds hamburgers because they have
“chicken” in their names, actually contain twice the fat per ounce as a hamburger.
Schlosser, supra, at 140. It is at least a question of fact as to whether a reasonable
consumer would know–without recourse to the McDonalds’ website–that a Chicken
McNugget contained so many ingredients other than chicken and provided twice the
fat of a hamburger.
Similarly, it is hardly common knowledge that McDonalds’ french fries are comprised,
in addition to potatoes, of:
partially hydrogenated soybean oil, natural flavor (beef source), dextrose, sodium
acid pyrophosphate (to preserve natural color). Cooked in partially hydrogenated
vegetable oils, (may contain partially hydrogenated soybean oil and/or partially
hydrogenated corn oil and/or partially hydrogenated canola oil and/or cottonseed oil
and/or corn oil). TBHQ and citric acid added to preserve freshness.
Dimethylpolysiloxane added as an anti-foaming agent. [FN25]
FN25. Indeed, the taste of McDonalds fries depends largely on what is
added to the fries–the cooking oil in which they are fried. As Schlosser reports:
Their distinctive taste does not stem from the type of potatoes that McDonalds buys,
the technology that processes them, the restaurant equipment that fries them. Other
chains buy their french fries from the same large processing companies, use Russet
Burbanks, and have similar fryers in their restaurant kitchens. The taste of a fast
food fry is largely determined by the cooking oil. For decades [until 1990], McDonalds
cooked its french fries in a mixture of about 7 percent cottonseed oil and 93 percent
beef tallow. The mix gave the fries their unique flavor–and more saturated beef fat
per ounce than a McDonalds hamburger.
Schlosser, supra, at 120.
This argument comes closest to overcoming the hurdle presented to plaintiffs. If
plaintiffs were able to flesh out this argument in an amended complaint, it may
establish that the dangers of McDonalds’ products were not commonly well known
and thus that McDonalds had a duty toward its customers. The argument also
addresses McDonalds’ list of horribles, i.e., that a successful lawsuit would mean that
“pizza parlors, neighborhood diners, bakeries, grocery stores, and literally anyone
else in the food business (including mothers cooking at home)” (Defs.’ Mem. at 3),
could potentially face liability. Most of the above entities do not serve food that is
processed to the extent that McDonalds’ products are processed, nor food that is
uniform to the extent that McDonalds’ products are throughout the world. Rather,
they serve plain-jane hamburgers, fries and shakes–meals that are high in
cholesterol, fat, salt and sugar, but about which there are no additional processes
that could be alleged to make the products even more dangerous. In addition, there
is the problem of causation; hardly any of the entities listed above other than a
parent cooking at home serves as many people regularly as McDonalds and its ilk.
[FN26]
FN26. McDonalds claims to have served “over 99 billion,” and each day services
approximately 46 million customers. Pl.’s Mem. at 2. McDonalds, with approximately
13,000 outlets in the United States, has a 43 percent share of the United States fast
food market. Id.
In response to this argument, McDonalds claims that, even if true, it is also a matter
of common knowledge that any processing that its foods undergo serve to make
them more harmful than unprocessed foods. Defs.’ Reply Mem. at 12- 13. It is
premature to speculate as to whether this argument will be successful as a matter of
law if the plaintiffs amend their complaint to include these allegations, as neither
argument has been more than cursorily presented to the Court and certainly is not
properly before it. McDonalds’ argument is insufficient, however, to convince this
Court that the plaintiffs should not have the opportunity to amend their complaint to
include these allegations.
ii. Allergic Sensitivity
Plaintiffs also argue in their papers, less successfully, that McDonalds has a duty to
plaintiffs because they have an “allergic sensitivity” to McDonalds fare. E.g.,
Restatement (Third) Torts: Product Liability, § 2 (1998).
[15] To state such a claim, however, “the ingredient that causes the allergic reaction
must be one whose danger or whose presence in the product is not generally known
to consumers. When both the presence of an allergenic ingredient in the product and
the risks presented by such an ingredient are widely known, instructions and
warnings about that danger are unnecessary.” Id.; see also Kaempfe v. Lehn & Fink
Prods. Corp., 21 A.D.2d 197, 200- 01, 249 N.Y.S.2d 840, 845 (1st Dep’t 1964)
(holding that existence of duty depends upon manufacturer’s actual or constructive
knowledge that product contains ingredient to which substantial number of
population is allergic) (citing Tentative Draft No. 7 of Restatement (Second) Torts).
As noted above, there are no allegations in the Complaint with regard to this claim.
Plaintiffs have not alleged that cholesterol, fat, salt and sugar–or any other
ingredients in McDonalds products–are “allergens,” nor have they made the case
that the existence and effects of such ingredients are unknown to the public at large.
In the absence of such allegations, the theory fails.
iii. Foreseeable Misuse
Plaintiffs also attempt to ground a duty in a claim that eating McDonalds with high
frequency is a “misuse” of the product of which McDonalds is aware. Again, such
allegation was not in the Complaint, and, in any case, plaintiffs fail to allege even in
their papers that what is at issue is a misuse “in the sense that it was outside the
scope of the apparent purpose for which the [products] were manufactured.” Trivino
v. Jamesway Corp., 148 A.D.2d 851, 852, 853, 539 N.Y.S.2d 123 (3rd Dep’t 1989).
McDonalds’ products were manufactured for the purpose of being eaten, and the
injuries complained purportedly resulted from the eating of those products. Plaintiffs
cite no case law to support the contention that over-consumption of a food product
may be considered a misuse. If they amend their complaint to include an allegation
based on misuse, they had better be prepared to do so.
A better argument based on over-consumption would involve a claim that McDonalds’
products are unreasonably dangerous for their intended use. The intended use of
McDonalds’ food is to be eaten, at some frequency that presents a question of fact. If
plaintiffs can allege that McDonalds products’ intended use is to be eaten for every
meal of every day, and that McDonalds is or should be aware that eating McDonalds’
products for every meal of every day is unreasonably dangerous, they may be able to
state a claim.
iv. The NLEA
Plaintiffs finally attempt to rely on the NLEA, arguing that any finding that McDonalds
does not have to label its foods would mean that the NLEA is not worth the paper it is
written upon. Plaintiffs’ bizarre argument confuses the instant case–a common law
negligence and state statutory cause of action–with any enforcement proceedings by
the federal government to ensure that those covered by the NLEA (from which
McDonalds and other restaurants are exempt, as discussed above) have the
nutritional labeling required by the act. Any determination in this case has nothing to
do with whether Haagen-Daaz must include a label as to the nutritional contents of a
pint of ice cream. Plaintiffs might just as well argue that this case will affect the
labeling of tea in China.
Because Count III has failed to state a claim, it is dismissed.
2. Proximate Cause
McDonalds also argues that Count III should be dismissed because the plaintiffs may
not as a matter of law allege that the unhealthy attributes of McDonalds’ products
were the proximate cause of their obesity and other health problems. [FN27]
FN27. As an initial matter, plaintiffs object that McDonalds’ arguments as to duty and
proximate cause are contradictory and self- serving. They argue that McDonalds
cannot, on one hand, state that it is obvious that eating McDonalds’ food will cause
the injuries complained of, and then argue that plaintiffs have failed to demonstrate
that eating McDonalds’ food is the proximate cause of their injuries. McDonalds’
point, however, is not that the plaintiffs became obese necessarily for some reason
other than their diet of foods high in cholesterol, fat, salt and sugar, but that it is
impossible as a matter of law to blame one restaurant chain–even one responsible
for up to seven meals a week of a plaintiff–when the plaintiffs were eating other
foods (perhaps from other restaurants), were engaged in a lifestyle that may or may
not have included an appropriate physical regimen, and when their weights were
potentially influenced by a host of other factors, such as heredity, the environment,
society, etc. Plaintiffs must get over this hurdle to survive a motion to dismiss, and,
as discussed infra, the Complaint fails to do so.
[16] In order to show proximate cause, a plaintiff must establish that the
defendant’s conduct was a substantial cause in bringing about the harm. Elsroth v.
Johnson & Johnson, 700 F.Supp. 151, 166 (S.D.N.Y.1988) (citing Derdiarian v. Felix
Contracting Corp., 51 N.Y.2d 308, 316, 434 N.Y.S.2d 166, 169, 414 N.E.2d 666
(1980)); see also Restatement (2d) of Torts § 431 (1965). “The word ‘substantial’ is
used to denote the fact that the defendant’s conduct has such an effect in producing
the harm as to lead reasonable [persons] to regard it as a cause, using that word in
the popular sense, in which there always lurks the idea of responsibility, rather than
in the so-called ‘philosophic sense,’ which includes every one of the great number of
events without which any happening would not have occurred.” Restatement
(Second) Torts § 431, cmt. a.
[17] Several factors are considered, including “the aggregate number of actors
involved …