Federal Court Dismisses "Obesity" Class Action Against McDonald's

September 8, 2003
Last week, the federal district court for the Southern District of New York dismissed with prejudice a class action lawsuit brought against McDonald's Corporation for alleged obesity-related health problems caused by the consumption of McDonald's food. This was the second time the district court dismissed the complaint in Pelman v. McDonald's Corp., No. 02 Civ. 7821 (RWS). As this dismissal was with prejudice, plaintiffs will not have another opportunity to replead.

The district court dismissed a prior similar complaint earlier this year but allowed plaintiffs the opportunity to replead their case in an effort to state a cognizable claim. Plaintiffs' theory the second time around was that McDonald's targeted advertising toward "heavy users" of its food and that the company's advertising deceptively represented that its foods were nutritious and could be part of a healthy lifestyle. In dismissing the complaint a second time, the district court said the fundamental problem with plaintiffs' complaint was its failure to link any advertisements to the injury allegedly suffered by the named plaintiffs. Specifically, the district court held that the advertisements from 1987 and the subsequent related advertising campaign relied on by plaintiffs fell outside the statute of limitations for the adult-named plaintiffs (with the statute of limitations being tolled for the infant-named plaintiffs). Further, the court found that all named plaintiffs failed to sufficiently allege—under a very broad standard of causation—that consumption of McDonald's food caused their alleged injuries. The court also noted that the named plaintiffs would not be able to proceed with their cases, assuming arguendo that they did establish causation, because the advertisements relied on by them were not objectively misleading.

John F. Banzhaf III, a George Washington Law School professor who has been active in the litigation campaign against tobacco and food companies, has stated in response to the district court's decision that obesity litigation is far from over. In recent months, Banzhaf and others have targeted fast food companies, ice cream makers, and school boards as lawsuit candidates through the issuance of letters to those entities demanding that they cease the marketing or distribution of certain foods. In addition, the district court's suggestion that a different result might obtain under California law (Op. at 19 n.3) leaves open the possibility of the filing of other actions in other jurisdictions. However, the blow dealt by plaintiffs' failure to make it past the motion-to-dismiss stage in New York after two attempts—especially in light of the holding that they failed to allege causation under a relaxed standard—should set the stage for an uphill battle for other plaintiffs should other lawsuits be filed.

The district court's opinion dismissing plaintiffs' amended complaint is attached below.

Brian Anderson, an O'Melveny partner licensed to practice law in California and the District of Columbia, and Morgen Sullivan, an O'Melveny associate licensed to practice law in California and the District of Columbia, have contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted. This publication is intended for informational purposes only and is not intended as legal advice or as a substitute for legal consultation in a particular case or circumstance.