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Court Allows McDonald's Food Fight

By Mark Hamblett
New York Law Journal
September 21, 2006

Fast-food giant McDonald's will have to continue defending a lawsuit
claiming it engaged in deceptive advertising about the nutritional
benefits of its products.

Southern District Judge Robert Sweet has refused to grant the
company's latest motion to dismiss, saying that parents of children
who are obese and suffered other health problems -- allegedly because of McDonald's food -- provided enough specific examples of allegedlymisleading advertising to allow the suit to go forward.

Judge Sweet's ruling in Pelman v. McDonald's 02 Civ. 7821, was the
latest in a series of decisions in the 4-year-old case.

The decision will be published Friday.

The suit has drawn national attention, with McDonald's and critics of
over-zealous plaintiffs' lawyers charging it was the most recent
example of Americans blaming others for their own bad habits.

Parents of minors Ashley Pelman and Israel Bradley, who dined
regularly at the fast-food chain, claimed McDonald's was peddling
products that led to obesity, diabetes and "bad" cholesterol that
could increase the chance of heart disease.

In a February 2003 ruling dismissing the case, Judge Sweet
asked: "Where should the line be drawn between an individual's own
responsibility to take care of herself and society's responsibility to
ensure others shield her? The complaint fails to allege the McDonald's products consumed by the plaintiffs were dangerous in any way other than that which was open and obvious to a reasonable consumer."

Judge Sweet gave the plaintiffs leave to amend, but then dismissed
their amended complaint.

A portion of the lawsuit was restored by the U.S. Court of Appeals for the Second Circuit -- claims that McDonald's, between 1987 and 2002, engaged in a scheme of deceptive advertising under New York General Business Law 349.

The first count claimed McDonald's ads created the false impression
its food was nutritionally beneficial and part of a healthy lifestyle
if consumed daily. A second count alleged the failure to disclose the
use of additives that made the food less healthy than represented. A
third count alleged that McDonald's acted deceptively when it said it
would provide nutritional information to its New York customers.

Receiving the case on remand, Judge Sweet directed the plaintiffs to
state specifically which advertisements they were referring to and why they were "materially deceptive."

The judge also asked the plaintiffs to explain how they "were aware of the acts alleged to be misleading" and to offer a brief description of their injuries due to McDonald's' conduct.

While McDonald's claimed the plaintiffs failed on all counts, Judge
Sweet disagreed.

He said the plaintiffs adequately outlined their exposure to certain
ads and statements by McDonald's.

"Additionally, the plaintiffs alleged that their beliefs were affected
through their contact and interaction with third-parties who were
exposed to and influenced by McDonald's allegedly misleading
advertisements," Judge Sweet said. "This information is enough to
allow defendant to interpose a response, and the defendant's motion to strike is denied."

Judge Sweet ruled that the plaintiffs "sufficiently described" the
injuries that each had allegedly suffered -- "physical injuries of
weight gain, obesity, hypertension, and elevated levels of LDL
cholesterol; 2) false beliefs as to the nutritional contents and
effects of defendant's foods; and 3) economic losses in the form of
defendant's products that they would not have purchased but for
McDonald's conduct."

Judge Sweet then limited the plaintiffs to 40 specific allegedly
deceptive ads identified in their second amended complaint, but gave them leave to amend and add additional advertisements for "good cause shown."

Saying McDonald's had enough information to give an answer, he ordered the company to answer the second amended complaint within 30 days.

Samuel Hirsch represented the plaintiffs.

Thomas J. Quigley of Winston & Strawn represented McDonald's Corp.


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