Your Honor, We Call Our Next Witness: McFrankenstein

By BENJAMIN WEISER

The national psychodrama over obesity and fast food took an intriguing turn last week when a federal judge in Manhattan threw out a lawsuit that accused the McDonald's Corporation of deceiving its consumers about the high levels of fat, sugar, salt and cholesterol in its products. The 64-page ruling was notable not just for what McDonald's called its "common sense" approach, but for its suggestion that an alternate legal strategy might allow the plaintiffs to try again.

The suit, which sought class-action status on behalf of the millions of children and teenagers who regularly eat at McDonald's, sought to hold the chain liable for obesity and other illnesses in young people. In dismissing the suit, the judge, Robert W. Sweet of Federal District Court, said there was no evidence McDonald's had concealed information about the ingredients of its products. He also said it was widely known that fast food, and McDonald's products in particular, contained potentially harmful ingredients.

But Judge Sweet also held up the specter that the company had created some "McFrankenstein" foods that are altered during processing. He said if the plaintiffs could prove that the result was an added health hazard beyond the comprehension of the average consumer, they might have a better chance of pursuing their case. Excerpts from the ruling follow.

Judge Sweet began by citing the case's "unique and challenging issues."

Questions of personal responsibility, common knowledge and public health are presented. . . . 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? . . .

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. . . .

If consumers know (or reasonably should know) the potential ill health effects of eating at McDonald's, they cannot blame McDonald's if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonald's products. On the other hand, consumers cannot be expected to protect against a danger that was solely within McDonald's knowledge.

The judge noted two advertising campaigns cited by the plaintiffs that encourage people to eat daily at McDonald's ("McChicken Everyday!") and ("Big N' Tasty Everyday"), and to a statement on the company's Web site that "McDonald's can be part of any balanced diet and lifestyle."

The advertisements encouraging persons to eat at McDonald's "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 McDonald's 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, at most, in the absence of a claim that to do so will result in a specific effect on health.

For the plaintiffs to make a claim, Judge Sweet said, they would need to "allege either that the attributes of McDonald's 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." On both counts, he said, the complaint fell short.

It is well-known that fast food in general, and McDonald's products in particular, contain high levels of cholesterol, fat, salt and sugar, and that such attributes are bad for one. . . . If a person knows or should know that eating copious orders of supersized McDonald's 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 McDonald's. (Except, perhaps, parents of small children who desire McDonald's food, toy promotions or playgrounds and demand their parents' accompaniment.) Even more pertinent, nobody is forced to supersize their meal or choose less healthy options on the menu. As long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to a manufacturer.

The plaintiffs might have better luck, Judge Sweet suggested, if they amended their complaint to follow up on arguments they made but didn't fully develop in their initial action:

The plaintiffs attempt to show that over-consumption of McDonald's is different in kind from, for instance, over-consumption of alcoholic beverages or butter because the processing of McDonald's 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 McDonald's. They thus argue that McDonald's food is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it." . . . If true, consumers who eat at McDonald's have not been given a free choice, and thus liability may attach. . . .

Plaintiffs argue that McDonald's products have been so altered that their unhealthy attributes are now outside the ken of the average reasonable consumer.

The judge ran down the ingredients of several McDonald's products, including Chicken McNuggets, which in addition to well-known additives common to processed foods contain some less-familiar substances like TBHQ and an "anti-foaming agent."

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.

Thus, the judge concluded:

If plaintiffs were able to flesh out this argument in an amended complaint, it may establish that the dangers of McDonald's products were not commonly well known and thus that McDonald's had a duty toward its customers.

Judge Sweet was careful to say it was "premature to speculate" about the success of such an argument. McDonald's, meanwhile, said in a statement on Friday: "Here are the facts about our Chicken McNuggets. We use only top, trusted and well-known suppliers — the same chicken suppliers that stock grocery store shelves and kitchens across America. Our Chicken McNuggets are produced at U.S.D.A.-inspected facilities and are made from marinated, boneless, white and dark meat with no fillers. The chicken is then battered and breaded and cooked in vegetable oil."

Copyright 2003 The New York Times Company

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