Food Regulation. Neal D. Fortin

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СКАЧАТЬ that it would be impracticable to require each of the tens of thousands of potential class members to state exactly when and where they observed the deceptive advertisements. Before a class has been certified, however, the number of infant plaintiffs is only two, making the task much more manageable. It is true that it would be unduly burdensome for plaintiffs, at this stage, to allege the particular time and place that they saw the advertisements which allegedly caused their injuries. It will therefore be considered sufficient for plaintiffs to allege in general terms that plaintiffs were aware of the false advertisement, and that they relied to their detriment on the advertisement.

Nowhere in the Amended Complaint Is It Explicitly Alleged That Plaintiffs Witnessed Any of the Allegedly False Advertisements Cited… .

      Making all reasonable inferences in favor of the plaintiffs, the complaint implicitly alleges only one instance in which the infant plaintiffs were aware of allegedly false advertisements. The plaintiffs implicitly allege that they were aware of McDonald’s national advertising campaign announcing that it was switching to “100 percent vegetable oil” in its French fries and hash browns, and that McDonald’s fries contained zero milligrams of cholesterol, when they claim that they “would not have purchased or consumed said french fries or hash browns, or purchased and consumed in such quantities,” had McDonald’s disclosed the fact that these products “contain beef or extracts and trans fatty acids.”. . .

       Plaintiffs Have Failed to Allege that Consumption of McDonald’s Food Caused Their Injuries

      The most formidable hurdle for plaintiffs is to demonstrate that they “suffered injury as a result of the deceptive act.”…

      The absence of a reliance requirement does not, however, dispense with the need to allege some kind of connection between the allegedly deceptive practice and the plaintiffs’ injuries. If a plaintiff had never seen a particular advertisement, she could obviously not allege that her injuries were suffered “as a result” of that advertisement. Excusing the reliance requirement only allows the plaintiff to forgo the heightened pleading burden that is necessary for common law fraud claims. It cannot, however, create a causal connection between a deceptive practice and a plaintiff’s injury where none has been alleged. Accordingly, this Court required that to state a claim under § 349 in an amended complaint, plaintiffs would “have to set forth grounds to establish. . . that they suffered some injury as a result of that particular promotion.”. . .

      Plaintiffs have failed, however, to draw an adequate causal connection between their consumption of McDonald’s food and their alleged injuries. . ..

      Unlike the initial complaint, the amended complaint does specify how often the plaintiffs ate at McDonald’s. For example, Jazlyn Bradley is alleged to have “consumed McDonald’s foods her entire life. . . during school lunch breaks and before and after school, approximately five times per week, ordering two meals per day.” Such frequency is sufficient to begin to raise a factual issue “as to whether McDonald’s products played a significant role in the plaintiffs’ health problems.”

      What plaintiffs have not done, however, is to address the role that “a number of other factors other than diet may come to play in obesity and the health problems of which the plaintiffs complain.” This Court specifically apprised the plaintiffs that in order to allege that McDonald’s products were a significant factor in the plaintiffs’ obesity and health problems, the Complaint must address these other variables and, if possible, eliminate them or show that a McDiet is a substantial factor despite these other variables. Similarly, with regard to plaintiffs’ health problems that they claim resulted from their obesity. . ., it would be necessary to allege that such diseases were not merely hereditary or caused by environmental or other factors.

      Plaintiffs have not made any attempt to isolate the particular effect of McDonald’s foods on their obesity and other injuries. The amended complaint simply states the frequency of consumption of McDonald’s foods and that each infant plaintiff

      “exceeds the Body Mass Index (BMI) as established by the U.S. Surgeon General, National Institutes of Health, Centers for Disease Control, U.S. Food and Drug Administration and all acceptable scientific, medical guidelines for classification of clinical obesity.”. . .

      Following this Court’s previous opinion, the plaintiffs should have included sufficient information about themselves to be able to draw a causal connection between the alleged deceptive practices and the plaintiffs’ obesity and related diseases. Information about the frequency with which the plaintiffs ate at McDonald’s is helpful, but only begins to address the issue of causation. Other pertinent but unanswered questions include: What else did the plaintiffs eat? How much did they exercise? Is there a family history of the diseases which are alleged to have been caused by McDonald’s products? Without this additional information, McDonald’s does not have sufficient information to determine if its foods are the cause of plaintiffs’ obesity, or if instead McDonald’s foods are only a contributing factor. . ..

       The Advertising Campaign upon Which Plaintiffs Have Stated Reliance is Not Objectively Deceptive

      Even if plaintiffs were able sufficiently to allege that their injuries were causally related to McDonald’s representations about its french fries and hash browns, that claim must still be dismissed because the plaintiffs have not alleged that those advertisements were objectively misleading. . ..

      The essence of the plaintiffs’ claim of deception with regard to McDonald’s french fries and hash browns is that McDonald’s represented that its fries are cooked in “100 percent vegetable oil” and that they contain zero milligrams of cholesterol whereas in reality they “contain beef or extracts and trans fatty acids.” However, the citations in the amended complaint to McDonald’s advertisements, and the appended copies of the advertisements, do not bear out the plaintiffs’ claims of deception. The first citation is to an advertisement titled “How we’re getting a handle on cholesterol,” alleged to have commenced in 1987 and to have continued for several years thereafter. The text cited by the plaintiffs states:

      … a regular order of french fries is surprising low in cholesterol and 4.6 grams of saturated fat. Well within established guidelines for good nutrition.

The text cited in the complaint, however, inexplicably drops several significant words from the text of the advertisement included in the appendix to the amended complaint. The actual advertisement states:

      … a regular order of french fries is surprising low in cholesterol and saturated fat: only 9 mg of cholesterol and 4.6 grams of saturated fat. Well within established guidelines for good nutrition.

      The advertisement also states that McDonald’s uses “a specially blended beef and vegetable shortening to cook our world famous french fries and hash browns.”

      The plaintiffs next allege that beginning on or around July 23, 1990, McDonald’s announced that it would change its french fry recipe and cook its fries in “100 percent vegetable oil,” a change that rendered its fries cholesterol‐free. They allege that from the time of the change until May 21, 2001, McDonald’s never acknowledged “that it has continued the use of beef tallow in the french fries and hash browns cooking process.” On its website, however, McDonald’s is alleged to have “admitted the truth about its french fries and hash browns”:

      A small amount of beef flavoring is added during potato processing—at the plant. After the potatoes are washed and steam peeled, they are cut, dried, par‐fried and frozen. It is during the par‐frying process at the plant that the natural flavoring is used. These fries are then shipped to our U.S. restaurants. Our french fries are cooked in vegetable oil at our restaurants.

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