Lawyers revise obesity lawsuit against McDonald's
From Jonathan Wald
NEW YORK, New York (CNN) -- Lawyers who last month couldn't get a federal judge to bite on their claims that McDonald's food was responsible for making their clients fat went back to the counter for a second helping Thursday, filing a revised complaint accusing the fast food giant of making misleading nutritional claims.
The original complaint was dismissed on January 22 by U.S. District Court Judge Robert Sweet, who said plaintiffs failed to show that McDonald's food was "dangerous in any way other than that which was open and obvious to a reasonable consumer."
But he gave lawyers for the obese McDonald's eaters 30 days to amend the complaint to try to establish that there were dangers that were "not commonly well known."
In the revised complaint, attorney Samuel Hirsch accused McDonald's of "deceptive practices in the advertising, processing and sale of foods, including Chicken McNuggets, Filet-O-Fish, Chicken Sandwich, french fries and hamburgers."
Hirsch asked for class-action status for the suit on behalf of "hundreds of thousands of New York state residents under the age of 18" who suffer health problems as a result of eating McDonald's food.
In the 46-page complaint, Hirsch alleged that McDonald's does not make its nutritional information "adequately available" and said numerous claims made by the fast-food chain are misleading and untrue.
While a McDonald's nutritional booklet claims the fish in a Filet-O-Fish is "100 percent cod with a pinch of salt to taste after cooking," the list of ingredients for the sandwich includes modified corn starch, dextrose, cellulose gum, citric acid and an anti-foaming agent called dimethylpolysiloxane, the complaint alleges.
The suit also alleges that while McDonald's claimed in advertisements that its beef is nutritious and leaner than beef purchased in a supermarket, the levels of saturated fat and cholesterol would not make the beef nutritious. The United States Department of Agriculture has also found that meat used in fast-food outlets was generally fattier than retail meat purchased in grocery stores, the complaint said.
In a statement McDonald's called the new lawsuit "senseless" and accused the plaintiffs of "focusing on only one food organization."
"McDonald's serves quality food and ingredients from quality suppliers and continues to be a leader in providing customers with nutritional information about our food," the statement said.
Legal action first of its kind
A McDonald's spokesman told CNN in a telephone interview that "eating McDonald's food can easily fit into a balanced diet. I eat its food every day, and I'm perfectly healthy."
Lawyers representing McDonald's have also said "every responsible person understands what is in products such as hamburgers and fries, as well as the consequence to one's waistline, and potentially to one's health, of excessively eating those foods over a prolonged period of time."
McDonald's lawyers also contend that it would be impossible to establish whether eating at McDonald's was a major cause of ailments because genetics, medical conditions and sedentary lifestyles could also be factors. Company lawyers also warned that if the case were allowed to proceed, "it would lead to an avalanche of litigation."
The landmark legal action was the first of its kind against a fast-food chain to make its way into a U.S. courtroom.
"Contrary to what many may think, we are not looking to get rich from a large money settlement," Hirsch told CNN. "We are proposing a fund that will educate children about the nutritional facts and contents of McDonald's food."
The original suit was filed last August by the parents of two girls who claimed McDonald's and two of its restaurants in the Bronx failed to clearly and conspicuously disclose the ingredients and effects of its food, including high levels of fat, salt, sugar and cholesterol.
The plaintiffs argued that McDonald's should be held accountable for the girls' obesity, heart disease, diabetes, high blood pressure and elevated cholesterol.
The girls, also listed as plaintiffs in the revised complaint, are Jazlyn Bradley and Ashley Pelman. Bradley, 19, is 5-feet-6 and weighs 270 pounds; Pelman, 14, is 4-feet-10 and 170 pounds.
Bradley said her regular diet included an Egg McMuffin for breakfast and a Big Mac meal for dinner. Pelman preferred Happy Meals and said she ate at McDonald's three or four times a week.
Bradley's father, Israel, said he never saw anything in the Bronx restaurants that informed him of the food's ingredients. "I always believed McDonald's was healthy for my children," he said in an affidavit.