In 2002, two New York minors, Ashley Pelman and Jazlen Bradley, represented by their parents, sued McDonald's before the state courts, then before the federal court for the Southern District of New York. They claimed that the company was responsible for their obesity and the associated health conditions.
The complaints
The complaint set out five causes of action: deceptive business practices under the New York Consumer Protection Act (sections 349 and 350 of the General Business Law), marketing aimed at children, negligence, failure to warn, and the allegedly addictive nature of the products. The plaintiffs complained in particular that McDonald's had presented its food as “nutritious” and had not properly disclosed the levels of cholesterol, fat, salt and sugar.
The 2003 dismissal, and the sentence that went around the world
On 22 January 2003, Judge Robert W. Sweet dismissed the entire complaint - while allowing the plaintiffs to redraft it within thirty days. The reasoning has remained famous:
“It is well-known that fast food in general, and McDonald's products in particular, contain high levels of cholesterol, fat, salt and sugar, and that such attributes are bad for one. […] If a person knows or should know that eating copious orders of supersized McDonald's products is unhealthy and may result in weight gain, it is not the place of the law to protect them from their own excesses. Nobody is forced to eat at McDonald's.”Judge Robert W. Sweet, Pelman v. McDonald's Corp., 237 F. Supp. 2d 512 (S.D.N.Y., 22 January 2003) - originally in English
The judge nonetheless attached a decisive reservation to his dismissal: liability could arise if the consumer's free choice became “illusory”, for example if the information needed for that choice was concealed. He invited the plaintiffs to show that the products had been processed to the point of being “so different and more dangerous” than they appear - hence his remark on Chicken McNuggets, “a McFrankenstein creation of various elements not utilized by the home cook”.
The amended complaint was again dismissed on 3 September 2003, for lack of a sufficiently established causal link: the court asked what else the plaintiffs ate, what physical activity they did, and what their family medical history was.
The Court of Appeals reinstates part of the action
On 25 January 2005, the federal Court of Appeals for the Second Circuit (Pelman ex rel. Pelman v. McDonald's Corp., 396 F.3d 508), in an opinion by Judge Jed S. Rakoff, partially vacated this dismissal and remanded the case.
The ground was procedural, not moral: section 349 of the New York law, which penalises “deceptive acts or practices”, does not require proof that the consumer relied on the advertising. It is therefore not subject to heightened pleading requirements; the general rule suffices.
“This is the sort of information that is appropriately the subject of discovery, rather than what is required to satisfy the limited pleading requirements of Rule 8(a).”United States Court of Appeals for the Second Circuit, 25 January 2005 - originally in English
The claims based on section 350, on the other hand, were treated as abandoned for not having been argued on appeal - a point often misreported.
The end, without a judgment on the merits
The case went no further. On 27 October 2010, certification of the class action was refused: the questions of causation were found to be too individual. In February 2011, the parties discontinued the proceedings. No court has ever ruled on the merits of McDonald's liability for the plaintiffs' obesity.
The “cheeseburger bills”
The legislative reaction, by contrast, was considerable. In Congress, the Personal Responsibility in Food Consumption Act, sponsored by Representative Ric Keller, sought to bar civil actions against food manufacturers and sellers for harm related to weight gain. The House of Representatives passed it twice - by 276 votes to 139 on 10 March 2004, then by 306 to 120 on 19 October 2005 - but the Senate never voted on it. The federal bill remained a dead letter.
The states, for their part, legislated: according to a study by the Public Health Advocacy Institute, twenty-five “Commonsense Consumption Acts” were adopted between 2003 and 2012, a twenty-sixth in 2013, granting civil immunity to food-industry players for harm linked to long-term consumption.
The link with the Antibes case file is indirect but real: it is the same underlying question that recurs from one lawsuit to the next - to what extent is the business that organises a network and its communications answerable for what that network produces? French litigation raised it on the ground of contract, in the implementation of the termination clause; the Liebeck case raised it on the ground of product liability.
The procedure, and what it says about American law
Three features of this case deserve explanation, because they recur in almost all American litigation involving the network.
It was a putative class action. Two named plaintiffs acted on behalf of a class of New York minors. Such an action becomes truly collective only if the judge certifies the class - a decisive step, since it turns an individual dispute into a mass risk. Pelman was never tried on the merits.
The defendant was the head of the network. The plaintiffs sued McDonald's Corporation, the company that owns the brand and prescribes the standards, and not the companies that operate the restaurants. This is the recurring question of franchising: who is answerable when the network writes the rules and the franchisee applies them?
The claims included punitive damages, a mechanism specific to American law, which does not compensate a loss but punishes conduct. None were awarded.
A useful reminder for anyone wishing to check: the significant litigation of a US listed company is listed in its 10-K annual report, under the heading “Legal Proceedings”, filed each year with the SEC and freely available.