Federal judge allows obesity lawsuit alleging deceptive ads.

A federal judge in New York has allowed a lawsuit against fast-food giant McDonald's to proceed, denying the company's motion to dismiss the class action that accuses it of deceptive advertising. In ruling for the plaintiffs, Judge Robert Sweet of the Southern District of New York found that they had presented enough examples of "materially deceptive" advertising, and sufficiently described the injuries the deceptions allegedly caused them, to move forward with the lawsuit.

The judge dismissed the plaintiffs' other claims, however, and limited the lawsuit to the issue of deceptive advertising. Sweet also noted that "the court would not address the legal sufficiency of plaintiffs' claims on the present motions." (Pelman v. McDonald's Corp., 2006 WL 2663214 (S.D.N.Y. Sept. 16, 2006).)

So-called obesity lawsuits have not met with much success in the courts--and this one has encountered a series of roadblocks. It began in 2002, when the parents of two teenagers charged that regular consumption of McDonald's food had caused their children to become obese and to suffer from obesity-related illnesses such as hypertension, Type 2 diabetes, and high cholesterol. The plaintiffs alleged that because McDonald's misled consumers about the nutritional content of its food, the teens ate more of it than they would have if they had known that it was high in fat and cholesterol.

In 2003, Sweet dismissed the plaintiffs' complaint but allowed them to file an amended complaint, and then dismissed that, too. Last year, the Second Circuit Court of Appeals reinstated parts of the lawsuit, and these claims went back to Sweet on remand. (396 F.3d 508 (2d. Cir. 2005).)

In 2006, the plaintiffs filed a second amended complaint, which McDonald's moved to dismiss on the ground that the plaintiffs had not provided a definitive description of their claims. But Sweet disagreed, saying the plaintiffs' descriptions met the required standard.

"Defendant fails to show, and this court fails to see, that the absence of this information makes the complaint vague and conclusory such that defendant can not interpose a response in good faith," Sweet wrote.

John Banzhaf III, a professor of public interest law at George Washington University in Washington, D.C., said the ruling is significant for two reasons.

"First, it provides a clear road map and an open door in the Second Circuit with the specification of a 'bare-bones pleading,'" said Banzhaf, who consulted on the case. "And second, and perhaps more important, it finally opens the doors to discovery."

He compared this development to those that boosted tobacco litigation, saying, "This case has now survived all of these motions. Everything will come out in discovery, including documents that could be devastating [in front of] a jury."

Steven Anderson, president and CEO of the National Restaurant Association, issued a statement saying, "We maintain our position that these frivolous lawsuits are senseless and baseless. The nation's 900,000 restaurants have long provided and will continue to offer a wide variety of choices and options that meet any individual's dietary needs. In addition, it is important to recognize that personal and parental responsibility, moderation, balance, and physical fitness are keys to healthier living."

Banzhaf noted that unlike tobacco companies, which have long been regarded in an unflattering light, McDonald's has an excellent corporate reputation. "Discovery could reveal a great deal about how McDonald's was operating," he said, especially in marketing its food to children. "And the behavior wouldn't even have to be illegal, yet could still be very tarnishing."