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NY Judge Lets the Burgers Fly in McDonald's Food Fight By Mark Hamblett Banning 'Mclawsuits'; Matthew Kish A bill nearing the governor's desk would make it illegal to sue Indiana restaurants including the state's ubiquitous fast-food joints for those extra notches in the belt. Commonly referred to as the cheeseburger bill, the measure is part of a national effort by restaurants and small-business owners to protect themselves from enormous class-action lawsuits that have been filed against some national chains. House Bill 1113 passed out
of the Senate Committee on Corrections, Criminal, and Civil Matters
on Feb. 14 by a 9-2 vote and headed to the Senate floor. It
previously sailed through the House by a 76-21 margin. It also is a high priority for small businesses in Indiana. Although no obesity lawsuits have been filed here, just one could easily cripple a family diner. It's an important issue for us both in the state and nationwide, said John Livengood, president of the Restaurant and Hospitality Association of Indiana. The state's 13,000 restaurants ring up an average of $ 500,000 in sales annually, with profits of about 5 percent $ 25,000. Lawsuits could easily gobble up those profits if a restaurant had to defend its chili recipe. Indiana trial lawyers conceded the bill is headed for a signing ceremony. It's going to pass, said Warren Mathies, from the Boonville-based law firm Long & Mathies, who represents trial attorneys. Nonetheless, Mathies made an unsuccessful plea for legislators to exempt children from the bill when it was heard in the Senate committee. Children at schools and day-care centers don't have much choice about what they eat, he argued, so school cafeterias need to shoulder some responsibility if they're putting trans-fat-filled cookies and artery-clogging beef on lunch trays. I don't buy that argument, countered Jason Shelley, state director of the National Federation of Independent Business, who declined to elaborate. Almost 90 percent of Shelley's members support the legislation. And small-business owners aren't the only ones on board. A recent Gallup Poll showed 89 percent of Americans don't think restaurants should be liable for issues related to obesity. Similar legislation has been proposed on the federal level, but it has stalled in the U.S. Senate. That's why advocates are taking the fight to the state level. More than 20 states now have similar laws on the books, according to the American Legislative Exchange Council. Among them: Indiana's neighbors in Ohio, Illinois and Kentucky. The legislation comes as a result of two high-profile lawsuits filed against fast-food companies including McDonald's, Burger King, KFC and Wendy's in the past four years. Both have been unsuccessful. But the first class-action suit against big tobacco also failed, Shelley pointed out. That four-year court struggle ended in 1998 with states and plaintiffs' lawyers getting almost $ 250 billion out of the country's five largest tobacco manufacturers. And those same lawyers are the ones getting into the ring against restaurants. The tobacco Nazis have moved over into the obesity arena, said Joe Lackey, president of Indiana Grocery and Convenience Store Association and executive director of the Indiana Soft Drink Association. They are making it abundantly clear that their next target is the food industry. Lackey testified in opposition to the bill. So did the Indiana Retail Council, the Indiana Chamber of Commerce, the Insurance Institute of Indiana and the Indiana Broadcasters Association. What stake do television stations have in a bill about restaurants getting sued? Apparently, a big one. They're worried they'll be named in a suit by someone who got the idea to eat a cheeseburger after seeing a commercial during the nightly news. That illustrates the absurdity of the situation for some. It's this court mentality that we seem to have nowadays, Lackey said. Every time it snows or rains [grocery and convenience stores] have lawsuits filed against them by people who slip and fall. Those are fighting words for the American Trial Lawyers Association. While local trial attorneys may be conceding a few inches, their national counterparts are putting on the battle armor. The civil justice system has made our cars safer, our emergency rooms cleaner and our health care higher-quality, said spokeswoman Chris Mather. We don't have pajamas that are as easily flammable as we used to. We don't have gas tanks that explode at a certain angle. That's because of successful court cases. She pointed to Oreo cookies as one example of a lawsuit against a food company that made a difference. In May 2003, a California attorney sued Nabisco, part of Northfield, Ill.-based Kraft Foods Inc., for not disclosing that Oreos contain trans-fat, which the National Academy of Sciences' Institute of Medicine has said is directly associated with heart disease. While the lawsuit was unsuccessful, numerous food retailers now offer information about trans-fat on their labels. Court cases help to shine a light on problems, Mather said. And the greasy spoon on the corner doesn't have much to worry about, said Mathies, since it would be hard to prove a casual link between heart disease and a single plate of biscuits and gravy. McDonald's Settles Fat Suit for $8.5 Million By The Associated Press McDonald's Corp. will pay $8.5 million to settle a lawsuit accusing the fast-food giant of failing to inform consumers of delays in a plan to reduce fat in the cooking oil used for its popular french fries and other foods. BanTransFats.com, a nonprofit advocacy group, sued McDonald's in California state court in 2003, alleging the company did not effectively disclose to the public that it had not switched to a healthier cooking oil. In September 2002, McDonald's announced it would lower trans fat in its cooking oils and said the switch would be completed in five months. In February 2003, McDonald's announced a delay. The lawsuit accused the Oak Brook, Ill.-based company of failing to adequately inform consumers of that delay. The agreement announced Wednesday requires McDonald's to pay $7 million to the American Heart Association to use the proceeds to educate the public about trans fats in foods. Heart- clogging trans fat is made when manufacturers add hydrogen to vegetable oil -- a process called hydrogenation. Wednesday's settlement also requires McDonald's to spend $1.5 million publicizing that it has not followed through on its 2002 pledge. Additionally, the company will pay $7,500 to BanTransFats.com and $7,500 to Katherine Fettke, who had filed a separate complaint against McDonald's and has also agreed to settle. McDonald's has reduced the amount of trans fat in its Chicken McNuggets, Crispy Chicken and McChicken sandwiches, said spokesman Walt Riker. He said the company is working to reduce trans fat in its other fried foods. "We're continuing to test. We want to make sure we get it right for our customers," he said. NY Court Revives Obesity Suit Against McDonald's By Mark Hamblett A federal appeals court has given parents who blamed McDonald's for their children's obesity a ray of hope for their lawsuit. The U.S. Court of Appeals for the Second Circuit yesterday reinstated claims made by the parents that McDonald's violated a section of New York state's Consumer Protection Act by engaging in deceptive advertising over the health benefits of its fast-food. The case, Pelman v. McDonald's Corp., 03-9010, drew national attention when it was first filed. Some critics lashed out at the plaintiffs for blaming McDonald's for the eating habits of their own children, seeing the suit as an example of a culture of litigation and victimhood. The complaint alleged that McDonald's created the false impression that its food was part of a healthy lifestyle and nutritionally beneficial. It charged that McDonald's failed to disclose adequately that its food additives and its processing techniques were less healthy than represented. The complaint accused McDonald's of representing that it would provide nutritional information to New York customers, but then failing to do so at a number of restaurants in the state. The plaintiffs' children had eaten at McDonald's between three and five time a week between 1987 and 2002 and, allegedly because of McDonald's deception, did not know that its food could cause their obesity, diabetes, heart disease, high-blood pressure and elevated cholesterol levels. Samuel Hirsch represented the plaintiffs. Bradley Lerman of Winston & Strawn is lead counsel for McDonald's. Court Leans on Mcd's in Fat Suit By Leo Standora The fat's back in the fire in the McDonald's obesity case. A federal appeals court yesterday gave two hefty teens the okay to jump-start their stalled suit against the fast food giant for allegedly making them fat and sickly. Jazlyn Bradley, 19, of Brooklyn, has 270 pounds on his 5-foot-6 frame and Ashley Pelman, 14, of the Bronx, stands 4-feet-10 and weighs 140. The tubby teens claim they ate at McDonald's three to five times a week for years. Besides obesity, they allege the McDonald's menu caused them to develop diabetes, coronary disease, high blood pressure and cholesterol, and other maladies. Yesterday's decision vacated a September 2003 lower court ruling that tossed out their beef on grounds their lawyer failed to show McDonald's used deceptive ads to trick consumers into eating unhealthy food. It was the second time the suit had been tossed out. But the appeals panel found that attorney Samuel Hirsch's contention that McDonald's violated the New York Consumer Protection Act was worthy of "inspection" by the court. The suit alleges McDonald's failed - as it had agreed - to provide customers with free, written, easily understood nutritional information about its fast food. In addition, the chain was charged with failing to "adequately disclose that its use of certain additives and the manner of its food processing rendered certain of its foods substantially less healthy than represented." In a statement, the Oak Brook, Ill.-based company said "common sense tells you this particular case makes no sense." The statement continued, "Today's ruling, which is strictly procedural, simply delays the inevitable conclusion that this case is without merit." The teens said in their suit that they would have stopped or at least cut back on their visits to the Golden Arches if they had the straight dope on what they were eating.
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A Feast
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