… a regular order of french fries is surprising low in cholesterol and 4.6 grams of saturated fat. Well within established guidelines for good nutrition.
The text cited in the complaint, however, inexplicably drops several significant words from the text of the advertisement included in the appendix to the amended complaint. The actual advertisement states:
… a regular order of french fries is surprising low in cholesterol and saturated fat: only 9 mg of cholesterol and 4.6 grams of saturated fat. Well within established guidelines for good nutrition.
The advertisement also states that McDonald’s uses “a specially blended beef and vegetable shortening to cook our world famous french fries and hash browns.”
The plaintiffs next allege that beginning on or around July 23, 1990, McDonald’s announced that it would change its french fry recipe and cook its fries in “100 percent vegetable oil,” a change that rendered its fries cholesterol‐free. They allege that from the time of the change until May 21, 2001, McDonald’s never acknowledged “that it has continued the use of beef tallow in the french fries and hash browns cooking process.” On its website, however, McDonald’s is alleged to have “admitted the truth about its french fries and hash browns”:
A small amount of beef flavoring is added during potato processing—at the plant. After the potatoes are washed and steam peeled, they are cut, dried, par‐fried and frozen. It is during the par‐frying process at the plant that the natural flavoring is used. These fries are then shipped to our U.S. restaurants. Our french fries are cooked in vegetable oil at our restaurants.
While the plaintiffs do allege that the beef flavoring that McDonald’s acknowledges using is equivalent to beef tallow, the complaint does not allege that the beef flavoring contains cholesterol. McDonald’s maintains that its “cholesterol disclosure is regulated by the FDA and is entirely accurate and appropriate under the FDA’s regulations.”
Plaintiffs further allege that McDonald’s claims that its french fries and hash browns are cholesterol‐free is also misleading because the oils in which those foods are cooked contain “trans fatty acids responsible for raising detrimental blood cholesterol levels (LDL) in individuals, leading to coronary heart disease.” However, plaintiffs have made no allegations that McDonald’s made any representations about the effect of its french fries on blood cholesterol levels. As McDonald’s argues,
The contents of food and the effects of food are entirely different things. A person can become “fat” from eating “fat‐free” foods, and a person’s blood sugar level can increase from eating “sugar‐free” foods….
….
In light of the previous decision and the granting of leave to amend, the complaint will be dismissed with prejudice….
Because the plaintiffs have failed to allege both that McDonald’s caused the plaintiffs’ injuries or that McDonald’s representations to the public were deceptive, the motion to dismiss the complaint is granted….
* * * * *
DISCUSSION QUESTIONS AND NOTES
1 4.7. The Pelman Exception. Considering that Pelman was dismissed, and no other obesity lawsuits advanced so far, why have obesity lawsuits captured the public imagination? Over 20 states have passed “hamburger shield” laws to ensure that restaurants cannot be sued for making someone fat. Why is there such a concern about these suits?
2 4.8. Prevention of Pelman‐type actions. How can a company “immunize” itself against Pelman‐type lawsuits?
3 4.9. Follow‐up on Pelman.McFat I: The plaintiffs filed their initial complaint on August 22, 2002. The court dismissed the original complaint, but granted leave to amend the complaint. Pelman v. McDonald's Corp., 237 F.Supp.2d 512 (S.D.N.Y.2003).McFat II: On February 19, 2003, plaintiffs filed an amended complaint, and McDonald's filed a motion to dismiss. The court dismissed the complaint in its entirety with prejudice. Pelman ex rel. v. McDonald's Corp., No. 02 Civ. 7821, Not Reported in F.Supp.2d, 2003 WL 22052778 (S.D.N.Y. 2003).McFat III: Appeal from a decision of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge) granting defendant's motion to dismiss plaintiffs’ amended complaint. The Circuit Court held that the district court incorrectly dismissed plaintiffs’ claims under New York General Business Law § 349. The “district court nonetheless dismissed the claims under § 349 because it concluded that ‘[p]laintiffs have failed, however, to draw an adequate causal connection between their consumption of McDonald's food and their alleged injuries.’ Pelman II, 2003 U.S. Dist. LEXIS 15202, at *30.” … “This, however, is the sort of information that is appropriately the subject of discovery, rather than what is required to satisfy the limited pleading requirements of Rule 8(a), Fed. R. Civ. P.” The Circuit Court allowed some claims and remanded to the District Court. Pelman v. McDonald's Corporation, 396 F.3d 508 (2d Cir. 2005).McFat IV: McDonald's brought a motion pursuant to Rule 12(e), for a more definite statement of Plaintiffs' claims. McDonald's motion was granted in part and denied in part. Pelman v. McDonald's Corp., 396 F. Supp. 2d 439 (Oct. 24, 2005).McFat V: Motion to dismiss denied. District Court says plaintiffs have stated a claim. Pelman ex rel. v. McDonald's Corp., —F.Supp.2d—2006 WL 2663214 (S.D.N.Y. Sept. 16, 2006).McFat VI: Settlement and parties stipulate for dismissal. 2011 WL 1230712 (S.D.N.Y.) (Feb. 25, 2011).
Notes
1 1 See, e.g., HHS, The President's Council on Physical Fitness and Sports, Steps to Preventing Overweight and Obesity (2003).
2 2 John Cawley & Chad Meyerhoefer, The Medical Care Costs of Obesity: an Instrumental Variables Approach, 31 J. HEALTH ECON. 219–30 (2012).
3 3 At 21 U.S.C. §§ 343(Q), (R) [§§ 403(Q), (R) FD&C Act].
4 4 21 C.F.R. § 101.9(c).
5 5 21 C.F.R. 101.9(a), 21 C.F.R. 101.9(c), 21 C.F.R. 101.9(c)(8)(ii).
6 6 Adapted from The Food Label, FDA BACKGROUNDER (May 1999).
7 7 21 C.F.R. § 101.9(d).
8 8 21 C.F.R. § 101.9(e).
9 9 21 C.F.R. § 101.9(b)(10).
10 10 21 C.F.R. § 101.9(j)(13).
11 11 21 C.F.R. § 101.9(c).
12 12 21 C.F.R. § 101.12.
13 13 21 C.F.R. § 101.9(b)(2)(i)(A).
14 14 21 C.F.R. § 101.9(b)(2)(i)(B).
15 15 21 C.F.R. § 101.9(b)(2)(i)(C).
16 16 21 C.F.R. § 101.9(b)(2)(i)(D).
17 17 21 C.F.R. § 101.9(b)(2)(ii).