Ashley Pelman and Ors v McDonald’s Corporation and Ors (2003) H&FLR 2014-33

United States District Court (S.D.N.Y.)

22 January 2003

Coram: Sweet DJ

Appearing for the Plaintiffs: Mr Samuel Hirsch (of Samuel Hirsch & Associates)
Appearing for the Defendants: Messrs Thomas Quigley, Bradley Lerman and Bruce Braun (of Winston & Strawn) and Mesdames Anne Kimball and Sarah Olson (of Wildman, Harrold, Allen & Dixon)

Catchwords: New York – infant – McDonald’s – overweight – heart disease – diabetes – hypertension – high cholesterol – deceptive acts – negligence – puffery – failure to warn

Facts: The plaintiff was an infant who had consumed the hamburgers and other items sold by the defendant. She had become overweight and developed (inter alia) heart disease, diabetes, hypertension and high cholesterol. She issued proceedings aganst the defendant, alleging deceptive acts and practices breaching the Consumer Protection Act, N.Y. General Business Law, §349 and §350 (by failing to disclose the ingredients and/or health effects of their products) and the N.Y.C. Administrative Code, Ch. 5, 20-700 (in relation to the defendant’s marketing practises). She also alleged that the defendant had negligently sold products which caused negative health effects and which were addictive, and that it had failed to warn cusomers of the makeup of its products and the health-effects of consuming them.

The defendant sought summary dismissal of the complaint under r.12(b)(6) of the Federal Rules of Civil Procedure.

Held: Dismissing the complaint with leave to re-plead –

1. The plaintiff had not identified an instance of deceptive acts or advertising to children, and therefore the allegations on these points had to be dismissed.

2. Obiter, that encouraging consumers to eat McDonald’s “everyday!” was mere puffery absent a claim that doing so would have particular health effects.

Coastal Communications Corp. v. Adams/Laux Co Inc, 40 USPQ 2d 1383-1996 (SDNY, 24 September 1996), considered.

3. An allegation of liability to consumers based on their over-consumption of products will fail if the effects of overconsumption are common knowledge. In order to state a claim it would be necessary to allege that the products are so extraordinarily unhealthy as to be (a) outside the reasonable contemplation of consumers, or (b) dangerous even in their intended use. The Court noted the significant processing undergone by the defendant’s products and gave leave to amend the complaint to raise allegations on the point.

4. For the claim to survive an application to dismiss, it would be necessary to show that the plaintiff ate at McDonalds on enough occasions to raise a question as to whether its products played a significant role in her health problems. The more often she ate there, the more likely it was that its products had caused her injuries. Further, the complaint would need to address any impact from other variables (for example, genetics).

5. A manufacturer will not be liable for a failure to warn of its products’ unhealthy attributes if the risks are sufficiently obvious without a warning. However, this does not apply where elements of the hazard are concealed or not reasnably apparent to the user.

Andrulonis v United States, 924 F. 2d 1210 (2d Cir., 1991); Liriano v Hobart Corp., 92 NY.2d 232, 677 NYS.2d 764, 700 NE.2d 303 (NY, 1998), followed.

Judgment

The Court’s judgment is available here.