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Parents who claim their youngsters have become obese from eating at McDonald’s won’t get sympathy from federal judge Robert Sweet. Sweet, of the U.S. district court for the Southern District of New York, recently dismissed a multimillion-dollar lawsuit against the hamburger giant. His finding: Parents had reason to know that eating the fast food tended to increase weight gain. “If consumers know (or reasonably should know) the potential ill health effects of eating at McDonald’s, they cannot blame McDonald’s,” Sweet wrote, in a 64-page opinion. The case started as a class action that drew national attention for highlighting America’s alarming increase in child obesity. The plaintiffs were three children who became overweight and developed diabetes or other health problems, allegedly from eating what McDonald’s advertised as healthy food at two of its outlets in the Bronx. They sued for deceptive acts and practices under the federal Consumer Protection Act, New York’s General Business Law, and New York City’s Administrative Code. They charged that McDonald’s negligently sold food high in cholesterol and fat, and failed to warn about the dangers of Big Macs and McNuggets. The company was also negligent, they alleged, because it marketed food that was addictive. Inviting Lawsuits In his opinion, Sweet noted that McDonald’s “rightfully pointed out” that this case “could spawn thousands of similar lawsuits against restaurants.” Sweet also denied the plaintiffs’ request to remand the case to state court; he said the complaint lacked any mention of specific acts of deception. In making the deceptive advertising claims, the plaintiffs contended that McDonald’s ran two ad campaigns that urged consumers to buy “McChicken Everyday” and “Big N’ Tasty Everyday.” Plaintiffs also noted that the fast food chain stated on its Web site that “McDonald’s can be part of a balanced diet and lifestyle.” But Judge Sweet said that there had been no allegations that the ads asserted “that its products may be eaten for every meal of every day without any ill consequence.” In fact, wrote Sweet, “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.” Judge Sweet also found fault with the plaintiffs’ complaint. To state a claim for negligence, the complaint must allege that the foods were “so extraordinarily unhealthy that they are outside the reasonable contemplation” of consumers, or that the products are “so extraordinarily unhealthy as to be dangerous in their intended use.” But the complaint failed “to reach this bar,” he said, because “it is well known that fast food in general, and McDonald’s products in particular, contain high levels of cholesterol, fat, salt, and sugar.” Some Hope For Plaintiffs Despite his ruling, Sweet held out some hope for the plaintiffs in repleading, specifically on their claim that McDonald’s food products are more dangerous than the average hamburger, fries, and shake because of additives and processing that are not common knowledge to consumers. “It is at least a question of fact as to whether a reasonable consumer would know, without recourse to McDonald’s Web site, that a Chicken McNugget contained so many ingredients other than chicken and provided twice the fat of a hamburger,” he wrote. Still, Sweet cautioned, “nobody is forced to eat at McDonald’s.” This article originally appeared in New York Law Journal, a sibling publication of Corporate Counsel and a part of American Lawyer Media.

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