Combating Obesity in the Courts: Will Lawsuits Against McDonald’s Work? Melissa Grills Robinson, Paul N. Bloom, and Nicholas H. Lurie A proposed method of combating obesity in the United States is to hold food companies legally liable for obesity-related damages. Recent lawsuits against fast-food restaurants, such as Pelman v. McDonald’s Corp., have tried to draw on the success of tobacco litigation by claiming that fast-food marketers provide misleading information about the nutritional value of their products, leading consumers to overconsume and, thus, become obese. The Pelman plaintiffs also allege that fast food is addictive and have asked to represent a class of children who have become obese as a result of McDonald’s products. This article compares legal efforts against the aggressive marketing of fast food with those against the marketing of tobacco products and argues that, for several reasons, such legal efforts will face substantial hurdles. In particular, this article argues that to be successful, such lawsuits must show either that McDonald’s acted deceptively or that it has a duty to warn consumers about the unhealthful nature of its products. In addition, they must show that they satisfy the requirements necessary to certify a class. Finally, they must gain public and legislative support for legal action. Without these lawsuits satisfying the necessary legal elements and gaining increased public support for legal action against the industry, it seems unlikely that the fast-food industry will be held responsible for obesity-related damages. Having concluded that the tobacco litigation experience does not offer a promising road map to combat obesity, the authors briefly consider the vulnerability of the food industry to alternative legal strategies and legislative actions. besity is recognized as a leading cause of preventable contents of their products (see Bradford 2003; Higgins death in the United States (U.S. Department of Health 2003). In addition, the threat of litigation and legislative Oand Human Services 2001). Some critics point to the action may encourage food companies to restrict some of food industry’s aggressive marketing practices as a primary their more aggressive marketing tactics “voluntarily.” For culprit in the obesity crisis and recommend that the industry example, the threat of lawsuits may discourage soft drink be held legally liable for its role in expanding the nation’s companies from entering into exclusive pouring contracts waistline (e.g., Banzhaf 2005b). These commentators sug- with school systems (Higgins 2003; Roberts 2003). Further- gest that legal successes against the tobacco industry, more, efforts by state legislatures to consider requiring including the 1998 settlement in which the 50 United States nutritional labeling in restaurants may encourage some settled with the six largest tobacco companies for $246 bil- chains to add more nutritional information to their menus. lion over 25 years (National Association of Attorneys Gen- At the same time, obesity lawsuits have been met thus far eral 1998), can provide a useful road map for obesity litiga- with public skepticism and new legislative initiatives tion (Banzhaf 2005b; Crister 2003; Schlosser 2002). designed to protect the food industry. A recent Gallup poll To date, only one case in which the plaintiffs sued specif- shows that 90% of the American public disapproves of ically for obesity-related damages has resulted in a written efforts to sue fast-food restaurants for obesity claims (Saad decision (Pelman v. McDonald’s Corp. 2003a, b, 2005), and 2003), and 14 states have passed so-called cheeseburger the final outcome of this case has not been determined. bills, which are designed to protect restaurants and food However, several successful lawsuits have been brought manufacturers from obesity lawsuits (e.g., Common-Sense against food companies that knowingly misrepresented the Consumption Act 2004). In addition, recent federal legisla- tion has limited class action lawsuits in state courts (Class Action Fairness Act 2005). Melissa Grills Robinson is a doctoral student of Marketing and an This article provides an analysis of the decisions in the attorney (e-mail: [email protected]), and Paul N. Bloom is Pro- one obesity case that has been brought to trial (Pelman v. fessor of Marketing (e-mail: [email protected]), Kenan-Flagler McDonald’s Corp. 2003a, b, 2005). In Pelman, New York Business School, University of North Carolina at Chapel Hill. City attorney Sam Hirsch filed suit on behalf of a proposed Nicholas H. Lurie is Assistant Professor of Marketing, College of Man- class of obese and overweight children who claimed that agement, Georgia Institute of Technology (e-mail: [email protected]). their obesity-related health problems were caused by their The authors thank Gary Ford and Robert Adler for their helpful consumption of McDonald’s foods. The Pelman lawsuit is comments. the first to allege that food companies are responsible for © 2005, American Marketing Association ISSN: 0743-9156 (print), 1547-7207 (electronic) 299 Vol. 24 (2) Fall 2005, 299–306 300 Policy Watch: Commentaries and Viewpoints damages suffered by those who consume so much of a prod- Act specifically exempts restaurants from federally man- uct that they become obese. McDonald’s is accused of dated labeling requirements, federal preemption doctrine deceiving consumers by failing to disclose particular ingre- does not protect restaurants from claims of deception based dients or nutrients. The company is also accused of failing on state law (FDA, Food Labeling; General Requirements to warn that its products are unhealthful and that the con- for Health Claims for Food 1993; Pelman v. McDonald’s sumption of these products may result in obesity. Finally, Corp. 2003a). McDonald’s is accused of knowingly selling addictive prod- Despite not being subject to the preemption restrictions ucts without warning consumers of their addictive proper- that protect the tobacco industry, plaintiffs against fast-food ties. Although the trial court dismissed each of these decep- companies face several challenges. To be successful, plain- tion, failure to warn, and addiction claims (Pelman v. tiffs will need to present evidence that shows either that McDonald’s Corp. 2003a, b), the United States Court of McDonald’s acted deceptively, including evidence that the Appeals for the Second Circuit directed the trial court to products in question caused the negative health conse- allow the plaintiffs to discover and present evidence related quences and related injuries, or that McDonald’s has a duty to the deception claim (Pelman v. McDonald’s Corp. 2005). to warn consumers about the unhealthful nature of its prod- The following section examines the similarities and dif- ucts. The Pelman plaintiffs have also alleged that McDon- ferences between Pelman and tobacco litigation. This sec- ald’s had a duty to disclose that its products are addictive tion also explains the rationale for the trial court’s earlier and, therefore, inherently dangerous. Because the Pelman dismissal and what evidence the plaintiffs would need to plaintiffs have asked to be allowed to represent a class of support their claims. We conclude that future lawsuits using children who have become obese as a result of consumption the approach taken in the Pelman case would need to over- of McDonald’s products, they must also show that their come substantial hurdles. Although the Pelman case is the injuries (and those of the proposed class) are sufficiently main focus of this article, we briefly consider the likelihood similar to be recognized as constituting a “class” for mass of success of alternative legal strategies. tort action. Finally, public and legislative support for legal action must be generated. Without sufficient evidence to support at least one of the legal arguments and without Fast Food: The Next Tobacco? increased public support for legal action against the indus- Lawsuits against tobacco companies were successful in part try, it seems unlikely that the fast-food industry will be held because industry “whistleblowers” and investigations by the responsible for obesity-related damages. In the following U.S. Food and Drug Administration (FDA), the U.S. House sections, we discuss each of these elements. of Representatives, and private journalists revealed that tobacco companies’ marketing efforts deceived consumers Deception about the potential harms associated with consuming prod- ucts that cause diseases such as emphysema and lung cancer Although there are some cases in which food companies (Hilts 1996; Kessler 1994; Rabin 2001). In addition, evi- have acknowledged responsibility for deceptive acts under dence presented in the tobacco cases showed that the indus- consumer protection statutes, to date, no plaintiff has suc- try targeted vulnerable children (Hilts 1996). Importantly, cessfully shown that a food company has deceived con- these revelations created an environment in which states’ sumers about the potential for its products to cause obesity. attorneys general believed that they had sufficient public In Pelman, the plaintiffs broadly allege that McDonald’s support to seek damages (Campbell et al. 1994). In the deceived them into believing that its products could be a tobacco cases, evidence was also presented that tobacco healthful part of their diet if consumed every day; in partic- (nicotine) is addictive and that the tobacco companies ular, the plaintiffs allege that certain in-store