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Parents who claim their youngsters became obese from eating at McDonald’s will receive no sympathy from federal Judge Robert W. Sweet. Sweet, of the U.S. District Court for Southern District of New York, on Wednesday dismissed a multimillion-dollar lawsuit against the hamburger giant, finding that parents had reason to know that consumption of 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 if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonald’s products,” Sweet said. The 64-page opinion gave the plaintiffs the chance to replead their complaint in a putative class action that drew national attention in August for highlighting America’s alarming increase in child obesity. The suit also gave fuel to critics of spurious litigation and to those who perceive a decline in personal responsibility. 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, charging 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. In Wednesday’s opinion, Sweet said McDonald’s “rightfully, pointed out that this case … could spawn thousands of similar lawsuits against restaurants.” Rejecting the plaintiffs’ request to remand the case to state court, the judge said the complaint lacked any mention of specific acts of deception, and even lacked “some allegation that plaintiffs ate primarily at the particular outlet.” On the claims for deceptive advertising, the plaintiffs contended that McDonald’s had two ad campaigns that urged “McChicken Everyday” and “Big N’ Tasty Everyday,” and also posted a statement on its Web site saying, “McDonald’s can be part of a balanced diet and lifestyle.” But Judge Sweet said there were no allegations that the company’s ads assert “that its products may be eaten for every meal of every day without any ill consequence.” “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,” he said. He also rejected as “puffery” allegations that McDonald’s targeted children, first in its promotion for “Slugger,” a plastic beef steak figure that comes with a pamphlet urging children to eat two servings a day from the meat group, and, second, in the “Mighty Kids Meal,” or what the judge called a “souped-up Happy Meal.” STATING A CLAIM To state a claim for negligence, the judge said, the complaint must allege that the food chain’s products are “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.” The complaint “fails 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, and that such attributes are bad for one.” The judge 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 said. But in the end, “nobody is forced to eat at McDonald’s,” the judge said. “Even more pertinent, nobody is forced to supersize their meal or choose less healthy options on the menu.” Samuel Hirsch represented the plaintiffs. Thomas J. Quigley, Bradley E. Lerman and Bruce R. Braun of Chicago-based Winston & Strawn, and Anne G. Kimball and Sarah L. Olson of Wildman, Harrold, Allen & Dixon in Chicago represented McDonald’s.

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