Two years ago, journalists – hot for a story – began calling John Banzhaf, the telegenic George Washington University law professor who led the anti-smoking legal crusade from its early stages. “Would tobacco-style lawsuits,” he was asked, “now be aimed at food processors and restaurants?”
“Well, no,” Banzhaf later recalled he said. “There are important differences.”
There sure are. But that hasn’t stopped America’s voracious plaintiffs’ bar. The lawsuits began last year. The most prominent was filed in New York by several obese children, including Jazlyn Bradley, who weighs 270 pounds, and Ashley Pelman, who is 14 years old, 4 feet 10 inches tall and weighs 170 pounds.
“Between the ages of five and twelve I used to go to McDonalds approximately 3-4 times a week,” Ashley wrote in her affidavit. “I normally order the Happy Meal or sometimes a Big Mac.” Jazlyn had more diverse tastes, attesting that she “would regularly order either breakfast, the No. 1 Big Mac meal, the No. 2 meal, chicken nuggets or the fish sandwich.” Also, desserts, “including the apple pie.”
Poor kids! I have real sympathy for them – and not because they eat burgers and fries, which Americans (me, included) were consuming long before McDonald’s was a twinkle in the eye of a management genius named Ray Kroc. Jazlyn and Ashley apparently were never taught that if you overeat and fail to exercise regularly, you can get disgustingly and unhealthily fat. If they have a legal case against anyone, it’s their parents. (Jazlyn’s father, Israel Bradley, admits to a ritual of eating a pound of french fries a week.)
In January, Judge Robert Sweet threw out the children’s suit. “Nobody is forced to eat at McDonald’s,” he wrote. “As long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to a manufacturer.” As for knowledge, Sweet accepted the defense that everyone understands that if you eat too much fatty, salty, sugary food, you can endanger your health.
But Judge Sweet invited the plaintiffs to try their suit again, offering what the Financial Times called “detailed guidance” for making it more effective. While Sweet agreed that consumers should be expected to know that hamburgers and fried chicken can make you fat, he suggested that restaurants like McDonald’s put stuff into their dishes that turns them into something different and more dangerous from what people expect.
“It is at least a question of fact as to whether a reasonable consumer would know – without recourse to McDonald’s website – that a Chicken McNuggets contained so many ingredients other than chicken and provided twice the fat of a hamburger,” wrote the helpful judge. As a further hint, Sweet called Chicken McNuggets a “McFrankenstein creation.”
The lawyer, Samuel Hirsch, filed a new version of the suit on Feb. 19, and it is a travesty. Physicians and scientists at the American Council on Science and Health (ACSH), a distinguished organization that has vigorously crusaded against such true health hazards as smoking, called it “without scientific merit.”
The suit attacks McDonald’s food for containing preservatives and other “chemicals.” But, as Elizabeth Whelan, the president of the Council, said, “All foods are chemicals
