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TRENDS

The McLawsuit: The Fast-Food Industry And Legal Accountability For Obesity

Abstract

 
Recent litigation brought by a group of overweight children against the McDonald’s Corporation that seeks compensation for obesity-related health problems has provoked an intense public response. Many have derided this lawsuit as representing the worst excesses of the tort liability system, while others have drawn parallels to tobacco litigation. Fast-food litigation raises the question of where accountability for the economic and public health consequences of obesity properly rests. In this paper we consider the reasonableness of the claims against fast-food companies and discuss several social effects that the litigation may have irrespective of its outcome in court.

This kind of litigation raises the important question of who, if anyone, ought to be held accountable for the economic and public health consequences of obesity. Courts have spent the past three decades answering that question as it relates to tobacco-related illness, another public health problem of staggering proportions.⁵ Lawsuits brought against tobacco companies initially were greeted with the same disparaging reaction and gloomy legal predictions that the fast-food lawsuits are now receiving—yet the tide of public and legal opinion has shifted to place responsibility for the harms of smoking squarely on the tobacco industry. In this paper we consider the reasonableness of the claims against fast-food companies and ask whether—irrespective of their outcome in court—fast-food litigation might serve any useful social purpose.

Fast-Food Litigation To Date

Top Fast-Food Litigation To Date Legal Issues In Pelman Negligence And Failure To... Fraud And Deception Have We Heard This... Litigation And Accountability Editor's Notes NOTES

 
The most publicized lawsuit to date, Pelman v. McDonald’s, was brought on behalf of children who consumed McDonald’s products and allegedly became obese or overweight and developed diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, or other health effects as a result.⁶ Although it was recently dismissed, the case provides a good lens through which to consider the arguments for holding the fast-food industry accountable for obesity-related health harms.⁷

The Pelman plaintiffs claimed that McDonald’s had engaged in deceptive advertising, sales, and promotion; produced food that was unreasonably unsafe; and failed to warn consumers of the dangers of its products. The complaint alleged that McDonald’s knew or should have known that its actions would exacerbate obesity and its associated health problems in millions of American children.

The plaintiff’s attorney in Pelman had previously filed a similar lawsuit against McDonald’s and several other fast-food chains on behalf of a class of adults represented by Caesar Barber, a fifty-six-year-old New York City maintenance worker who had been eating fast food several times a week for more than twenty-five years.⁸ That complaint’s legal architecture foreshadowed Pelman, but the plaintiff’s lawyer withdrew the case to pursue Pelman, whose child plaintiffs were no doubt seen as more powerful representatives of the "afflicted" population.

Several other food-related suits have been in the news recently.⁹ Although not all of these suits relate directly to obesity, they are all examples of consumers’ attempting to hold the food industry accountable for wrongfully manipulating Americans’ food choices.

The industry is clearly aware of the possible financial impacts of these lawsuits. Financial analysts at UBS Warburg and J.P. Morgan Chase and Company have warned that more litigation is likely, creating a "clear long-term risk" to the revenues of fast-food and snack-food makers.¹⁰ In June 2003, in response to intensive industry lobbying, legislation was introduced in Congress seeking to provide the industry with legal immunity from obesity-related suits.¹¹

Legal Issues In Pelman

Top Fast-Food Litigation To Date Legal Issues In Pelman Negligence And Failure To... Fraud And Deception Have We Heard This... Litigation And Accountability Editor's Notes NOTES

 
The Pelman plaintiffs did not fare well in their initial foray against McDonald’s. The federal court in New York dismissed their complaint in January 2003 for failing to adequately state a claim.¹² However, the dismissal was granted "without prejudice," meaning that the plaintiffs were free to amend and refile their claim. To that end, Judge Robert Sweet’s decision included an astonishingly detailed commentary on the strengths and weaknesses of the various claims made, including pointed suggestions for evidence that would make for a stronger case against McDonald’s.

The plaintiffs’ amended complaint, filed a month later, was narrowed to two main allegations. First, McDonald’s food products were "so processed with additives and other ingredients and preservatives" that they created a "danger and hazard," and McDonald’s was negligent in failing to warn consumers of this hazard. Second, McDonald’s marketing behavior amounted to fraudulent and deceptive business practices under New York State’s consumer protection laws.¹³ The plaintiffs later dropped the failure-to-warn claim, a strategic decision that proved ill-advised.¹⁴ In September 2003 Judge Sweet dismissed the remaining claim, holding that the plaintiffs had not sufficiently alleged the elements of a deceptive advertising claim and chastising their attorneys for failing to follow his instructions for the amended complaint.¹⁵ Because these two types of claims (negligence and fraud) seem likely to be the cornerstones of future actions against the fast-food industry, we explore them further.

Negligence And Failure To Warn

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The negligence claim in Pelman was based on allegations that McDonald’s products were dangerous beyond the extent ordinarily understood by consumers and that McDonald’s negligently failed to warn consumers. Four key legal hurdles confront a product liability claim of this kind. The plaintiff must prove that (1) the danger was not apparent to the average consumer; (2) the product is unreasonably dangerous for its intended use; (3) the plaintiff’s obesity was caused by the food in question; and (4) the harm would not have occurred had an adequate warning been given.¹⁶

Consumer choice and known dangers. If the danger associated with a product is "open and obvious," the law will not intervene to prevent a consumer from the consequences of his or her own poor decisions.¹⁷ This philosophy of free consumer choice pervades the judge’s ruling on the initial Pelman complaint: "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."¹⁸ This same perspective seems to fuel public derision of the lawsuit.

Against this backdrop of free choice, it appears that plaintiffs in fast-food litigation will face major barriers. However, two arguments could help plaintiffs along. First, such generalized knowledge need not apply to children. The Pelman court declined to consider the young age of the plaintiffs in gauging their responsibility for their own food choices, invoking prior case law holding that minors are presumed to have an understanding of commonly known dangers of alcohol.¹⁹ But other courts might see it differently.

Second, the open-and-obvious defense will not stand if the actual contents of fast-food products go well beyond average consumers’ knowledge of their harm. Arguments emphasizing the synthetic nature of McDonald’s food appeared to have hit the mark in Pelman: The judge analogized McDonald’s products to genetically engineered food and suggested that consumers are not well positioned to understand the health impacts of such complex products. For example, although consumers may be aware of the fat and calorie content of an ordinary piece of chicken, "Chicken McNuggets...are a McFrankenstein creation of various elements not used by the home cook."²⁰ (Taking this cue, the plaintiffs’ amended complaint provided a list of McNuggets ingredients that is eleven lines long and includes partially hydrogenated soybean oil, sodium aluminum phosphate, and dimethylpolysiloxan.)²¹ Although the Pelman plaintiffs abandoned this line of argument, it could prove persuasive in future cases.

Unsafe for intended use. The claim that food products are "unsafe for their intended use" is a harder sell. Such arguments have been pressed, largely unsuccessfully, in product liability lawsuits against firearm manufacturers.²² The problem for plaintiffs in fast-food litigation is pinning down exactly what the intended use is. Plaintiffs must first prove the manufacturer’s intent, based on marketing materials, other public statements, or internal documents, and then show that the product cannot safely be used in the way the manufacturer promotes it.

The Pelman litigants sought to do this in their amended complaint by citing promotional materials, such as McDonald’s "Big N’ Tasty Everyday!" advertising campaign, which advocated heavy consumption of McDonald’s products. They also referenced a statement by a McDonald’s nutritionist: "Our wide range of choices on our menu makes it possible for people to eat there three times a day if they wanted to."²³ In addition, the plaintiffs unearthed prior testimony by a McDonald’s marketing executive that the company’s advertising specifically targets "Heavy Users," with the goal of having them visit McDonald’s twenty times per month.²⁴ It remains to be seen whether such material will convince courts that the intended use of McDonald’s food is consumption at a level that is likely to lead to obesity.

Causation. Causation looms as perhaps the most formidable hurdle for fast-food plaintiffs. The task of establishing that fast food leads to ill health actually calls for a trio of independent proofs.

Substantial factor. First, the plaintiffs must show that consumption of the defendant’s food was at least a "substantial factor" in causing their obesity.²⁵ This involves determining how much of the defendant’s food was consumed, as well as tackling the complicated question of the relative contributions of other factors, including other food, physical activity, other behavioral and environmental factors, and genes.

In simplistic terms, obesity is caused by an imbalance of energy consumed and energy burned, but the underlying factors affecting this balance are complex. Susceptibility to obesity is likely a function of both genetic and environmental factors, including interactive effects (for example, genes may affect people’s ability to compensate for environmental influences). The genetic origins of obesity remain murky; few genes have been identified as directly linked to obesity, and homozygosity for those that have been found is very rare.²⁶ Until the gene–environment interactions influencing obesity are better understood, proving that any single factor played a major causal role could be difficult. However, plaintiffs in the tobacco litigation ultimately prevailed despite limited knowledge of the exact biological link between smoking and cancer.

On the environmental side, plaintiffs will have to grapple with the contributory roles of their own unhealthful behavior, such as extensive television viewing, failure to participate in physical activity at recommended levels, and consuming foods with empty calories or foods high in saturated and trans fats. These behaviors are widespread among U.S. youth, and all have been empirically linked to obesity.²⁷

The Pelman plaintiffs’ failure to show that McDonald’s food contributed substantially to their obesity, independent of other environmental and genetic factors, was a key failing leading to the case’s dismissal.²⁸ However, more detailed and careful argumentation in future litigation could lead to greater success.

Linking obesity and ill health. Second, the link between obesity and specific adverse health conditions must be established. Although the strength of the arguments here may vary from plaintiff to plaintiff, the scientific evidence of this connection is now reasonably solid and growing stronger.²⁹ Judged against accepted epidemiologic criteria for causation, the observed associations between obesity and morbidity are probably strong enough to support an inference of general causation.³⁰

Would behavior change? Third, the plaintiffs must convince the court that had appropriate warnings about the food been given, the plaintiffs could have avoided the health problems for which they blame the manufacturer. In other words, would the plaintiffs have decided not to purchase the defendant’s food (or consumed less of it) if they had been warned of its dangers? There is a degree of crystal ball gazing in this exercise, but proving that the answer to this counterfactual question is yes is a critical element of a failure-to-warn claim.

Fraud And Deception

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Under state consumer protection laws, manufacturers and retailers cannot induce consumers to buy their products through deceptive or misleading means, whether acts or omissions. Plaintiffs who bring claims under these laws must show that the information was material to consumers’ purchasing decision. As in negligence claims, they must also show that the misleading nature of the information was not obvious to the typical consumer.

The causation hurdle is more tractable for fraud claims than for negligence claims because state consumer protection laws generally construe causation more broadly.³¹ Tobacco plaintiffs have lodged fraud claims successfully, most recently in Price v. Philip Morris, in which the plaintiffs alleged that Philip Morris had misrepresented its "light" cigarettes as less harmful than other cigarettes. In March 2003 an Illinois state judge handed down a $10.1 billion verdict against Philip Morris following a bench trial of these claims.

The Pelman plaintiffs claimed that McDonald’s falsely represented its food as nutritious in its advertising and marketing and that the content and preparation methods of its food were neither honestly described nor what consumers ordinarily would expect.³² The amended complaint cited several examples of misleading nutritional claims and important omissions. For instance, McDonald’s marketed its fries as "zero cholesterol" but did not disclose that the fries are cooked in oils that contain trans fatty acids, which have been found to raise atherogenic LDL cholesterol levels even more than saturated fat.³³

The success of such fraud claims will hinge on the extent to which specific claims such as "zero cholesterol" are construed as misleading. In their original complaint, the Pelman plaintiffs made only general allegations that McDonald’s engaged in deceptive and manipulative marketing practices by targeting children and by encouraging people to eat at McDonald’s every day. The court was not impressed. It ruled that marketing to minors was not inherently deceptive and that the encouragement to dine daily was mere "puffery," not deception.³⁴ The plaintiffs’ amended complaint was much more specific, citing the example of a McDonald’s giveaway, a toy hamburger patty named "Slugger," which had an accompanying booklet explaining that eating meat "can make it easier to do things like climb higher and ride your bike farther." The plaintiffs argued that this claim about the impact of meat on endurance and athletic prowess was utterly unsupported.³⁵ The plaintiffs failed, however, to show that they actually viewed the allegedly misleading materials—a key element of a deceptive advertising claim.³⁶

"No damning evidence has emerged that food manufacturers manipulate the content of their products to get consumers addicted."

Have We Heard This Story Before?

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It is difficult to resist drawing parallels between the fast-food litigation and litigation over another public health problem of staggering proportions: tobacco use.³⁷ The current disease burdens of smoking and obesity are comparable; indeed, there is growing evidence that obesity already outranks smoking in both its prevalence and associated morbidity and health costs.³⁸ Yet there is vocal public protest against the idea of holding the fast-food industry accountable for these health burdens. There appear to be important differences between tobacco products and food products that drive this view.³⁹

Addictive qualities. Unlike smoking, fast food appears to be safe when consumed in moderation. It has not been scientifically established that fast food contains substances that are physically addictive, although recent news reports suggest that several forthcoming studies will demonstrate a link between consumption of high-fat and high-sugar foods and neurochemical changes and addictive behavior in rats.⁴⁰ Similarly, scientists at snack-food companies have reportedly investigated how certain foods trigger overeating, but no damning evidence has emerged that food manufacturers manipulate the content of their products to get consumers addicted. Nor is there evidence that they have suppressed research showing that their products are harmful—although they have been slow to make their products safer in response to published studies (some decades old) showing that hydrogenated oils increase LDL cholesterol. Any or all of these factors could be responsible for the public’s willingness to hold the tobacco industry, but not the fast-food industry, liable for public health harms.

Public attitudes. It is also possible, though, that this disparity is attributable merely to timing or maturity of the litigation. The initial lawsuits brought against tobacco companies in the 1950s and 1960s met much the same reception as today’s fast-food litigation. Smoking was widespread and more socially accepted at that time, despite growing awareness of its health risks. Following the release of the surgeon general’s landmark 1964 report on smoking and health, the idea that smokers did not understand the potential hazards of their habit had little credence.⁴¹ Smokers’ lawsuits failed because courts held that the plaintiffs had voluntarily assumed the risks.⁴² Judicial opinions in these cases, akin to the Pelman opinion, were infused with the rhetoric of free choice.

Over time, however, public attitudes about tobacco use began to change. As additional scientific evidence of the links to health problems emerged, governmental and nongovernmental action to discourage smoking intensified, and the prevalence of smoking declined steadily.⁴³ Still, legal obstacles to successful claims against tobacco companies persisted. In 1994 the discovery of the cache of incriminating tobacco industry documents dramatically changed the prospects for this litigation; it showed that cigarettes had been deliberately engineered to enhance their addictive qualities.⁴⁴ The tide of public opinion turned sharply against the industry, plaintiffs recentered their strategy on claims of fraud and deception, and lawsuits began to result in large damages awards and settlements.⁴⁵ Plaintiffs’ attorneys successfully used this evidence, as well as evidence that most smokers take up the habit as children and that tobacco companies deliberately targeted children in their marketing, to undercut the argument that smoking was an informed choice.

Painting culpability. An important lesson from tobacco is that public perceptions change, and so do legal fortunes. Recognizing this fluidity, some commentators have asked: "Is Big Fat the next Big Tobacco?"⁴⁶ The answer will depend in part on plaintiffs’ ability to paint a picture of a culpable industry by bringing to light practices—such as deliberate manipulation of product content, targeting of children, knowledge and concealment of health risks, and decisions not to adopt alternative safer product designs—that offend judges and juries.

Litigation And Accountability

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To most plaintiffs and their attorneys, the key objective in bringing personal injury lawsuits is to obtain compensation. But such suits often have more far-ranging effects, particularly when claims are brought through large class actions. A successful product liability lawsuit can force manufacturers to internalize the costs associated with making dangerous products, and even unsuccessful litigation can have profound effects. Win or lose, plaintiffs in innovative litigation like Pelman could bring about change in several areas.

Costs of obesity: time to share? A primary function of tort (or personal injury) law is to shift the costs of hazardous conduct from those who are injured to those who failed to decide to behave safely.⁴⁷ Makers of high-fat, high-calorie foods externalize much of the true cost of their products, which includes a portion of the $117 billion Americans incur each year in obesity-related economic costs.⁴⁸ These costs are borne by private health insurers and by consumers, who finance Medicare and Medicaid with their tax dollars and who—alongside the $110 billion per year they spend on fast food—spend $50 billion annually on weight-loss products.⁴⁹ Employers also foot the indirect costs of obesity when workers are absent because of obesity-related illness.

If widespread and successful, litigation would force fast-food defendants to shoulder more of the costs associated with consumption of their products. In this way, courts’ decisions imposing liability on manufacturers of asbestos, guns, medical devices, tobacco, fast food, and other products that pose public health harms have major socioeconomic implications. They relieve private citizens and public budgets of some of the burden of product-related disease and injury, and they also alter manufacturers’ cost-benefit calculations around selling these products.

Industry change. Even if not successful, fast-food litigation could motivate food makers to introduce voluntary changes in their business practices. This impact reflects the classic function of tort law as a deterrent of harmful behavior.

The Pelman plaintiffs observed that the claims made on the McDonald’s Web site have changed since the filing of that suit.⁵⁰ Customers of fast-food restaurants might have observed that nutritional information is increasingly being posted in prominent locations and online. McDonald’s and Frito-Lay have announced plans to remove trans fats and reduce saturated fats in french fries, chips, and other products—although McDonald’s has since "delayed" implementation of the decision.⁵¹ McDonald’s also announced in March 2003 that it would be adding a number of lower-fat and lower-calorie offerings to its menu.⁵² McDonald’s television commercials in Britain highlight the health benefits of items such as fruit bags and pasta salad—a major change in an advertising strategy that has consistently focused on taste, value, and convenience.⁵³ Kraft Foods—whose sister company, Philip Morris, learned hard lessons in the tobacco litigation—has pledged to reduce portion sizes, fat, and sugar in many products and to stop marketing its snacks in schools.⁵⁴ These initial steps could portend a broader movement in the industry to take public health concerns and the potential financial consequences of ignoring them more seriously.

Regulatory activism. If voluntary efforts are not forthcoming, government regulators could decide that additional oversight of the fast-food industry is appropriate. An important function of tort litigation, especially high-profile class-action litigation, is to flag health risks that require attention from regulatory agencies and legislatures.⁵⁵ Lawsuits also could demonize the defendant industry, and as Rogan Kersh and James Morone have observed, "With this trigger in cultural play, obesity begins to shift from being a private health matter to being a political issue."⁵⁶

"A single case is unlikely to change many consumers’ minds about fast food, but successive waves of litigation could turn consumers off this industry."

There has been remarkably little consumer protection regulation in the fast-food restaurant sector. In particular, Congress decided more than a decade ago to exempt restaurants from requirements that food products and menus bear labels with specified nutritional information.⁵⁷ The publicity over the fast-food litigation, combined with emerging research reports linking fast food to obesity and related health problems, could give Congress reason to reconsider this exemption.⁵⁸

The FDA has already stepped up its regulatory efforts in the area of obesity prevention. In July 2003 the agency implemented a regulation first proposed in 1999 requiring food makers to list trans fat content on product nutritional labels by 2006.⁵⁹ It is also encouraging research and industry product development aimed at energizing competition on the basis of the healthfulness of foods.⁶⁰

State regulatory action could take the form of investigations and lawsuits by attorneys general. As they famously did with tobacco, they could initiate actions on behalf of consumers or the state where the government has incurred costs because of a business’s deceptive or fraudulent practices. Attorneys general in several states, especially Connecticut, have taken aggressive action in recent years against companies as diverse as health maintenance organizations, long-distance telephone service providers, and investment firms.⁶¹ Some cases have been settled for large sums.⁶² States’ highest prosecutorial authority may be able to obtain concessions where private plaintiffs cannot.

Cultural change. However fast-food litigation is (initially) received by the public and adjudicated by the courts, it is likely to heighten awareness of the adverse health effects of heavy consumption of fast food. Popular books such as Eric Schlosser’s Fast Food Nation, Marion Nestle’s Food Politics, and Greg Critser’s Fatland have begun to do this.⁶³ A single case is unlikely to change many consumers’ minds about fast food, but like class-action litigation in other spheres, successive waves of litigation over time could bring new facts to light that turn consumers off this industry.

Getting out the message. Litigation could prove effective in getting nutritionists’ message out where other avenues have failed. A recent lawsuit involving Oreo cookies, for example, prompted thousands of broadcast and print pieces describing the plaintiff’s claims about the dangers of trans fats.⁶⁴ Courtroom battles provide a showcase for moving nutrition research out of academic journals and professional conferences and into the public eye. They set the stage for provocative news stories on the previously dismal subject of America’s obesity problem.

Changing consumers’ behavior. Greater awareness of both the role of fast food in causing obesity and the practices of the industry in manufacturing and marketing fast-food products could, in time, move consumers to turn away from regular consumption of fast food. For the first time in its history, McDonald’s Corporation posted a loss in the fourth quarter of 2002.⁶⁵ Its U.S. sales declined steadily in the last three quarters of 2002 and were essentially flat in the first quarter of 2003.⁶⁶ It is unclear whether this reflects a shift in consumers’ preferences away from fast food or other market dynamics, but with concern over obesity and its costs at an all-time high, conditions are surely ripe for such a turn.

Personal and corporate responsibility. Perhaps the most interesting question is how the fast-food litigation and its fallout could change the way Americans view obesity and the respective roles of personal and corporate responsibility in contributing to this public health problem. The negative public response to the fast-food litigation no doubt reflects the growing disgust with tort litigation generally. But the obesity lawsuits seem to have elicited especially strong condemnation. Americans appear steadfast in their belief that obesity is a matter of individual responsibility and, at some level, moral failure.

The obesity litigation could simply reinforce these attitudes if the public continues to revile it as yet another example of frivolous litigation in an out-of-control legal system. The sheer volume of media publicity surrounding these suits might turn Americans off the issue of accountability for obesity.

But it seems more likely that the litigation will move cultural attitudes in the other direction. A recent public opinion poll suggests that Americans are divided in their views about the role of government in combating obesity: 48 percent feel that obesity is "a private issue that people need to deal with on their own," while 47 percent feel that it is "a public health issue that society needs to help solve."⁶⁷ New information about the drivers of obesity and the food industry’s product development and marketing techniques is emerging at a rapid rate from investigative journalists and the scientific community and, in part because of the obesity litigation, is receiving wide publicity.⁶⁸ Under these conditions, the litigation may well serve as a catalyst for attitudinal change about obesity and appropriate policy responses.

The relationship between litigation and cultural mores is complex, however, and it would be misleading to portray it as unidirectional. Revelations from the tobacco litigation, for example, have played a pivotal role in provoking the public backlash against the tobacco industry, but declining smoking rates and vigorous social activism around tobacco use suggest that the cultural opposition had already crested by the time smokers won their first big court victories. If the time comes when Ronald McDonald is viewed not as a friendly face but as a threat to children’s health, history suggests that litigation will have been both a contributor to and a product of that transition.

Editor's Notes

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This work was wholly supported by general institutional funds from the Harvard School of Public Health.

Michelle Mello is an assistant professor of health policy and law in the Department of Health Policy and Management at the Harvard School of Public Health in Boston. Eric Rimm is an associate professor of epidemiology and nutrition in that school’s Departments of Epidemiology and Nutrition. David Studdert is an assistant professor of law and public health in the Department of Health Policy and Management.

NOTES

Top Fast-Food Litigation To Date Legal Issues In Pelman Negligence And Failure To... Fraud And Deception Have We Heard This... Litigation And Accountability Editor's Notes NOTES

 

1. Pelman v. McDonald’s Corp., Sup. Ct. N.Y., No. 24809/02, complaint filed 22 August 2002, pdfserver.amlaw.com/nlj/120902med-complaint.pdf (30 September 2003).
2. Barber v. McDonald’s Corp., Sup. Ct. N.Y., complaint filed 23 July 2002, news.findlaw.com/hdocs/docs/mcdonalds/barbermeds72302cmp.pdf (30 September 2003); and S.Clapp, "Anti-Smoking Lawyer Trains His Guns on the Food Industry," Food Chemical News 30, no. 4 (2002): 23.
3. A.Shlaes, "Lawyers Get Fat on McDonald’s," Chicago Tribune, 27 November 2002.
4. Citizens Against Lawsuit Abuse, "Best of the Bizarre ’02," www.calahouston.org/best02.html (13 May 2003).
5. R.L.Rabin, "The Tobacco Litigation: A Tentative Assessment," DePaul University Law Review (Winter 2001): 331–357.
6. Pelman v. McDonald’s Corp., complaint; and Pelman v. McDonald’s Corp., S.D.N.Y., No. 24809/02, amended complaint filed 12 February 2003, news.findlaw.com/hdocs/docs/mcdonalds/pelmanmcds21203acmp.pdf (30 September 2003).
7. Pelman v. McDonald’s Corp., No. 02 Civ. 7821 (RWS) (S.D.N.Y., 3 September 2003) (hereinafter "opinion II").
8. Barber v. McDonald’s Corp., complaint.
9. Clapp, "Anti-Smoking Lawyer"; A.Bakalis and C. Hurt, "Lawyers, Officials Study Fat Lawsuits," Washington Times, 20 June 2003; M.Lipka, "Fat’s in the Fire for Big Daddy; Judge Certifies Class Action Case over Claims in Content Label," Sun-Sentinel, 31 December 2001; S.Guy, "Twenty-four Groups to Share $10 Mil. McD’s Vegetarian Award," Chicago Sun-Times, 20 May 2003; G.Kim, " ‘Veggie’ Pizza Is Target of Lawsuit," Seattle Times, 2 May 2002; and K.Severson, "Lawsuit Seeks to Ban Sale of Oreos to Children in California," San Francisco Chronicle, 12 May 2003.
10. M.Higgins, "Senate Bill Bans Obesity Lawsuits," Washington Times, 17 July 2003; and R.Adams, "Fat Is a Financial Issue," Guardian, 27 December 2002.
11. N.Buckley, "Restaurants Seek Cover from Obesity Lawsuits," Financial Times, 19 June 2003.
12. Pelman v. McDonald’s Corp., 02 Civ. 7821 (RWS) (S.D.N.Y. 22 January 2003) (hereinafter "opinion I").
13. Pelman v. McDonald’s Corp., amended complaint.
14. D.Alexander, "Court Tosses McDonald’s Health Suit; Chain Calls for Debate on Nutrition," Chicago Tribune, 5 September 2003.
15. Pelman v. McDonald’s Corp., opinion II.
16. Pelman v. McDonald’s Corp., opinion I.
17. Plante v. Hobart Corp., 771 F.2d 617 (1st Cir. 1985); and Joseph E. Seagram & Sons v. McGuire, 814 S.W. 2d 358 (Tex. 1991).
18. Pelman v. McDonald’s Corp., opinion I.
19. Ibid.
20. Ibid.
21. Pelman v. McDonald’s Corp., amended complaint.
22. A.Rostron, "Gunning for Justice," Trial (November 2001): 27–32.
23. Pelman v. McDonald’s Corp., amended complaint.
24. Ibid.
25. Pelman v. McDonald’s Corp., opinion I.
26. The term "homozygous" refers to the possession of two identical forms of a particular gene—one inherited from each parent. K.M. Flegal et al., "Prevalence and Trends in Obesity among U.S. Adults, 1999–2000," Journal of the American Medical Association 288, no. 14 (2002): 1723–1727[Abstract/Free Full Text]; and S.O’Rahilly, "Leptin: Defining Its Role in Humans by the Clinical Study of Genetic Disorders," Nutrition Review 60, no. 10, part 2 (2002): S30–S34.
27. S.J.Nielsen et al., "Trends in Food Locations and Sources among Adolescents and Young Adults," Preventive Medicine 35, no. 2 (2002): 107–113; [CrossRef][Web of Science][Medline]L.Kann et al., "Youth Risk Behavior Surveillance—United States, 1999," MMWR CDC Surveillance Summary 49, no. 5 (2000): 1–32; and W.H.Dietz and S.L. Gortmaker, "Do We Fatten Our Children at the TV Set? Obesity and Television Viewing in Children and Adolescents," Pediatrics 75, no. 6 (1985): 807–812.[Abstract/Free Full Text]
28. Pelman v. McDonald’s Corp., opinion II.
29. W.C.Willett et al., "Guidelines for Healthy Weight," New England Journal of Medicine 341, no. 6 (1999): 427–434; [Free Full Text]National Task Force on the Prevention and Treatment of Obesity, "Overweight, Obesity, and Health Risk," Archives of Internal Medicine 160, no. 7 (2000): 898–904[Abstract/Free Full Text]; and E.E.Calle et al., "Body-Mass Index and Mortality in a Prospective Cohort of U.S. Adults," New England Journal of Medicine 341, no. 15 (1999): 1097–1105.[Abstract/Free Full Text]
30. A.Bradford Hill, "The Environment and Disease: Association or Causation?" Proceedings of the Royal Society of Medicine 58 (1966): 295–300; and National Task Force on the Prevention and Treatment of Obesity, "Overweight, Obesity, and Health Risk."
31. Pelman v. McDonald’s Corp., opinion II.
32. Pelman v. McDonald’s Corp., amended complaint.
33. Ibid.; R.P.Mensink et al., "Effects of Dietary Fatty Acids and Carbohydrates on the Ratio of Serum Total to HDL Cholesterol and on Serum Lipids and Apolipoproteins: A Meta-Analysis of Sixty Controlled Trials," American Journal of Clinical Nutrition 77, no. 5 (2003): 1146–1155[Abstract/Free Full Text]; and A.Ascherio et al., "Trans Fatty Acids and Coronary Heart Disease," New England Journal of Medicine 340, no. 25 (1999): 1994–1998.[Free Full Text]
34. Pelman v. McDonald’s Corp., opinion I.
35. Pelman v. McDonald’s Corp., amended complaint.
36. Pelman v. McDonald’s Corp., opinion II.
37. R.A.Daynard, L.E. Hash, and A. Robbins, "Food Litigation: Lessons from the Tobacco Wars," Journal of the American Medical Association 288, no. 17 (2002): 2179.[Free Full Text]
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39. Daynard et al., "Food Litigation."
40. J.Leake and A. Porter, "Burgers Are as Addictive as Drugs," Sunday Times (U.K.), 13 July 2003.
41. Advisory Committee, Smoking and Health.
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67. Luke Snell Perry and Associates, "Obesity as a Public Health Issue: A Look at Solutions," 2003, www.phsi.harvard.edu/health_reform/poll_results.pdf (30 September 2003).
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