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Pelman ex rel. v. McDonald’s Corp. [McFat II] S.D.N.Y. (Sept. 3, 2003)3
Judge: ROBERT W. SWEET ....
The infant plaintiffs are consumers who have purchased and consumed the defendant’s products in New York State out­ lets and, as a result thereof, such consumption has been a significant or substantial factor in the development of their obesity, diabetes, coronary heart disease, high blood pres­ sure, elevated cholesterol intake, and/or other detrimental and adverse health effects and/or diseases. . . .
McDonald’s Advertising Campaigns
In one survey of the frequency of purchases by visitors to McDonald’s restaurants, McDonald’s found that 72% of its customers were “Heavy Users,” meaning they visit McDonald’s at least once a week, and that approximately 22% of its customers are “Super Heavy Users,” or “SHUs,” meaning that they eat “at McDonald’s ten times or more a month.” Super Heavy Users make up approximately 75% of McDonald’s sales. Many of McDonald’s advertisements, therefore, are designed to increase the consumption of Heavy Users or Super Heavy Users. The plaintiffs allege that to achieve that goal, McDonald’s engaged in advertising cam­ paigns which represented that McDonald’s foods are nutri­ tious and can easily be part of a healthy lifestyle.
Advertising campaigns run by McDonald’s from 1987 onward claimed that it sold “Good basic nutritious food. Food that’s been the foundation of well-balanced diets for generations. And will be for generations to come.” McDonald’s also represented that it would be “easy” to follow USDA and Health and Human Services guidelines for a healthful diet “and still enjoy your meal at McDonald’s.” McDonald’s has described its beef as “nutritious” and “leaner than you think.” And it has described its french fries as “well within the established guidelines for good nutrition.”
While making these broad claims about its nutritious value, McDonald’s has declined to make its nutrition information readily available at its restaurants. In 1987, McDonald’s entered into a settlement agreement with the New York State Attorney General in which it agreed to provide [nutritional] information in easily understood
3 2003 WL 22052778 (S.D.N.Y. 2003) (not reported in F.Supp.2d).
Fortin, Neal D.. Food Regulation : Law, Science, Policy, and Practice, John Wiley & Sons, Incorporated, 2016. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uaeu-ebooks/detail.action?docID=4729306.
Created from uaeu-ebooks on 2021-02-01 02:41:18.
Copyright 2016. John Wiley & Sons, Incorporated. All rights reserved.
pamphlets or brochures which will be free to all customers so they could take them with them for further study [and] to place signs, including in-store advertising to inform customers who walk in, and drive through information and notices would be placed where drive-through customers could see them.
Despite this agreement, the plaintiffs have alleged that nutritional information was not adequately available to them for inspection upon request.
Claims
. . . The three remaining causes of action are based on deceptive acts in practices in violation of the Consumer Protection Act, New York General Business Law §§ 349 and 250. Count I alleges that McDonald’s misled the plain­ tiffs, through advertising campaigns and other publicity, that its food products were nutritious, of a beneficial nutritional nature or effect, and/or were easily part of a healthy lifestyle if consumed on a daily basis. Count II alleges that McDonald’s failed adequately to disclose the fact that certain of its foods were substantially less healthier, as a result of processing and ingredient additives, than represented by McDonald’s in its advertising campaigns and other publicity. Count III alleges that McDonald’s engaged in unfair and deceptive acts and practices by representing to the New York Attorney General and to New York consumers that it provides nutritional brochures and information at all of its stores when in fact such information was and is not adequately available to the plaintiffs at a significant number of McDonald’s outlets.
The plaintiffs allege that as a result of the deceptive acts and practices enumerated in all three counts, they have suffered damages including, but not limited to, an increased likelihood of the development of obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or detrimental and adverse health effects and/or diseases.


Original text

Pelman ex rel. v. McDonald’s Corp. [McFat II] S.D.N.Y. (Sept. 3, 2003)3
Judge: ROBERT W. SWEET ....
The infant plaintiffs are consumers who have purchased and consumed the defendant’s products in New York State out­ lets and, as a result thereof, such consumption has been a significant or substantial factor in the development of their obesity, diabetes, coronary heart disease, high blood pres­ sure, elevated cholesterol intake, and/or other detrimental and adverse health effects and/or diseases. . . .
McDonald’s Advertising Campaigns
In one survey of the frequency of purchases by visitors to McDonald’s restaurants, McDonald’s found that 72% of its customers were “Heavy Users,” meaning they visit McDonald’s at least once a week, and that approximately 22% of its customers are “Super Heavy Users,” or “SHUs,” meaning that they eat “at McDonald’s ten times or more a month.” Super Heavy Users make up approximately 75% of McDonald’s sales. Many of McDonald’s advertisements, therefore, are designed to increase the consumption of Heavy Users or Super Heavy Users. The plaintiffs allege that to achieve that goal, McDonald’s engaged in advertising cam­ paigns which represented that McDonald’s foods are nutri­ tious and can easily be part of a healthy lifestyle.
Advertising campaigns run by McDonald’s from 1987 onward claimed that it sold “Good basic nutritious food. Food that’s been the foundation of well-balanced diets for generations. And will be for generations to come.” McDonald’s also represented that it would be “easy” to follow USDA and Health and Human Services guidelines for a healthful diet “and still enjoy your meal at McDonald’s.” McDonald’s has described its beef as “nutritious” and “leaner than you think.” And it has described its french fries as “well within the established guidelines for good nutrition.”
While making these broad claims about its nutritious value, McDonald’s has declined to make its nutrition information readily available at its restaurants. In 1987, McDonald’s entered into a settlement agreement with the New York State Attorney General in which it agreed to provide [nutritional] information in easily understood
3 2003 WL 22052778 (S.D.N.Y. 2003) (not reported in F.Supp.2d).
Fortin, Neal D.. Food Regulation : Law, Science, Policy, and Practice, John Wiley & Sons, Incorporated, 2016. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uaeu-ebooks/detail.action?docID=4729306.
Created from uaeu-ebooks on 2021-02-01 02:41:18.
Copyright © 2016. John Wiley & Sons, Incorporated. All rights reserved.
pamphlets or brochures which will be free to all customers so they could take them with them for further study [and] to place signs, including in-store advertising to inform customers who walk in, and drive through information and notices would be placed where drive-through customers could see them.
Despite this agreement, the plaintiffs have alleged that nutritional information was not adequately available to them for inspection upon request.
Claims
. . . The three remaining causes of action are based on deceptive acts in practices in violation of the Consumer Protection Act, New York General Business Law §§ 349 and 250. Count I alleges that McDonald’s misled the plain­ tiffs, through advertising campaigns and other publicity, that its food products were nutritious, of a beneficial nutritional nature or effect, and/or were easily part of a healthy lifestyle if consumed on a daily basis. Count II alleges that McDonald’s failed adequately to disclose the fact that certain of its foods were substantially less healthier, as a result of processing and ingredient additives, than represented by McDonald’s in its advertising campaigns and other publicity. Count III alleges that McDonald’s engaged in unfair and deceptive acts and practices by representing to the New York Attorney General and to New York consumers that it provides nutritional brochures and information at all of its stores when in fact such information was and is not adequately available to the plaintiffs at a significant number of McDonald’s outlets.
The plaintiffs allege that as a result of the deceptive acts and practices enumerated in all three counts, they have suffered damages including, but not limited to, an increased likelihood of the development of obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or detrimental and adverse health effects and/or diseases.


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