Obese Kids Re-Plead Their Case

Published April 1, 2003

Lawyers for two obese New York teenagers and their siblings filed an amended complaint to replace the original suit dismissed by Judge Robert Sweet in the U.S. District Court of New York. Physicians and scientists at the American Council on Science and Health (ACSH) called the second filing against McDonald’s Corporation “without scientific merit.”

The new complaint, filed February 19, says the plaintiffs ate McDonald’s foods several days a week, becoming obese and ruining their health. The suit claims McDonald’s products are non-nutritious because, in part, many of the products contain preservatives and other “chemicals.” The lawsuit implies natural, unprocessed foods are chemical-free and thus “healthier.”

According to Dr. Elizabeth Whelan, ACSH president, the claim is without merit. “All foods are chemicals,” Whelan said in a statement issued after the suit was filed, “we’re just not routinely provided with the long list of natural chemicals in the meals we eat every day.

“Potatoes, for example, naturally contain over 150 chemicals, including traces of arsenic and solanine–chemicals that are safe in low doses but harmful at high ones. Coffee, for another, naturally contains methanol, acetaldehyde, isoprene and dimethyl sulfide–enough polysyllabic items to scare any chemophobic citizen.”

Not only are chemicals such as preservatives not harmful, note ACSH scientists, but they actually help protect health by preventing spoilage. All such chemicals are approved for use in human food by the Food and Drug Administration (FDA).

“A Choice Freely Made”

On a motion to dismiss filed by McDonald’s, Judge Robert Sweet dismissed the original complaint in Pelman v. McDonald’s in its entirety on January 22. In his 65-page opinion, Sweet noted,

As long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to a manufacturer. It is only when that free choice becomes but a chimera–for instance, by the masking of information necessary to make the choice, such as the knowledge that eating McDonald’s with a certain frequency would irrefragably cause harm–that manufacturers should be held accountable. Plaintiffs have failed to allege in the Complaint that their decisions to eat at McDonald’s several times a week were anything but a choice freely made and which now may not be pinned on McDonald’s.

Sweet, however, also identified in his opinion which of the plaintiffs’ arguments he felt was strongest, noting

If plaintiffs were able to flesh out this argument [that the chemical composition of McDonald’s products is not common knowledge] in an amended complaint, it may establish that the dangers of McDonald’s products were not commonly well known and thus that McDonald’s had a duty toward its customers.

As is common when a defendant’s motion to dismiss is granted, Sweet granted plaintiffs leave to replead nearly all of their claims, requiring only that the amended complaint be filed within 30 days of his opinion.

The amended complaint took advantage of Sweet’s encouragement on the chemical composition argument. Dr. Ruth Kava, ACSH nutrition director, says that encouragement was “misleading, in that it falsely implies that consuming processed foods with chemicals can cause obesity.” She notes the amended complaint specifically lists the chemical ingredients in Chicken McNuggets, “implying the ingredients were unfamiliar and therefore were somehow unhealthful and caused obesity.

“All foods are composed of chemicals,” Kava reiterated. “It is an excess of calories consumed relative to calories expended that causes weight gain.”

Conrad F. Meier is managing editor of Health Care News.

For more information …

Court documents related to Pelman v. McDonald’s are available through PolicyBot. Point your Web browser to http://www.heartland.org, click on the PolicyBot button, and search for document #11750 for the full text of Judge Robert Sweet’s 65-page opinion dismissing the original complaint, and document #11749 for the 28-page amended complaint.