COMMENTARY: Court count-- Food Industry 1, Shysters 0

Oct. 21, 2003

I was elated last week to learn the obesity-related lawsuit filed in a New York court against McDonald's had been dismissed. In his ruling, U.S. District Judge Robert Sweet soured the greedy ambitions of lawyer Samuel Hirsch and his four puppet plaintiffs (two female minors from separate families, along with one parent each) by concluding, "McDonald's motion to dismiss ... is granted. The plaintiffs' motion ... is denied as moot. Plaintiffs' request for leave to amend the complaint is denied."

In layman's terms, the judge ruled the plaintiffs' claims of damage bogus, their lawyer's research laughable and that a lame lawsuit such as that one would never get another hearing in his court.

McDonald's called the ruling a "total victory," and National Restaurant Association President Steven Anderson declared, "reason and common sense have prevailed." Anderson's right, but if you read the judge's entire 36-page conclusion, you'll realize no reasonable or commonsensical person could have ruled otherwise.

To call Hirsch's work bad lawyering is a compliment; to call it what it is ... well ... I can't print that. So I'll summarize for you.

Steve Coomes, Editor

1. Hirsch claimed that the teenagers had become obese from consumption of McDonald's sandwiches, fries, pies and shakes. He argued they were headed for a future fraught with diabetes and coronary trouble.

2. Hirsch claimed the teens were led improperly to believe McDonald's food was healthy (yes, feel free to pause and laugh at that one) by a long-term and deceptive advertising campaign (I always suspected Ronald McDonald was a shady character) that included TV ads encouraging customers to eat the company's food daily.

3. Hirsch also claimed that since McDonald's wasn't fully forthcoming with nutritional information for the teens -- or any other customer -- that that led them to conclude automatically McDonald's food was safe and healthful to eat.

Here's a summary of Judge Sweet's reply:

1. While said teens may be obese, their lawyer failed to prove McDonald's was the sole cause of their corpulence. McDonald's lawyers, it appears, argued successfully that an unbalanced diet and sedentary lifestyle also contributed to the super sizing of these kids. Additionally, though obese, Hirsch couldn't prove the teens were "injured" by their conditions since none were suffering from diet-related ailments.

2. Hirsch's allegations of a long-term deceptive ad campaign were not only vague and impossible to validate, the teenage defendants were not even born when the late-1980s ad campaign mentioned ran! It was implausible, the judge ruled, for them to have been thus influenced.

3. Hirsch could not prove McDonald's withheld nutritional information to the degree that his plaintiffs were subsequently disadvantaged by that implied lack of knowledge.

Perhaps most interesting about Judge Sweet's ruling is the clear message visible between the lines: Hirsch never had a case to begin with. Rather he only worked -- and sloppily so -- to find loopholes in the laws of the State of New York to create a reason to sue the world's largest food company. He and his plaintiffs proved themselves as damaged in no way and nothing more than opportunists attempting to line their pockets by blaming someone else for their sorry states.

He'll be back

The sad truth is that this won't be the last time McDonald's -- or any another large food company -- will be sued by Samuel the Shyster and his ilk. John Banzhaf, the George Washington University law professor who led the charge to beat "Big Tobacco" out of billions of dollars, told CNN, "We went 30 years before we won our first smoking case." He's clearly confident some judge eventually will buy his boneheaded argument that foodservice companies are to blame for Americans' fleshy flanks and should be sued.

Should I be surprised this happens?

Not really. America's courts are clogged with ridiculous lawsuits in which individuals blame companies for their loathsome lots and then use the courts to rob them in the process.

Perhaps most interesting about Judge Sweet's ruling is the clear message visible between the lines: Hirsch never had a case to begin with. Rather he only worked -- and sloppily so -- to find loopholes in the laws of the State of New York to create a reason to sue the world's largest food company.

A bull's-eye now is prominently positioned on the backs of the foodservice industry's most powerful companies, and, according to my sources, it's only a matter of time before more lawyers start taking shots. I spoke recently with two attorneys working for a sizeable pizza company, and both believe their employer, among others, will soon be in the crosshairs.

Inaction will kill you and your business

As a recent Gallup poll proved (89 percent of those polled believe obesity-based lawsuits are frivolous and wrong), any rational person can see that the problem of obesity cannot be blamed on food alone -- even the preponderance of junk food. In Americans' ongoing efforts to modernize every aspect of our lives, we have cultivated a culture of convenience that has removed nearly any necessity for manual labor/exercise.

Perhaps Hirsch and Banzhaf would admit this and then get off the food industry's back and start suing ...

* The gas and electric companies for making our houses so warm we need never perform the fat-burning, muscle-building act of chopping wood.

* The water companies, who deprive us of the aerobic benefit of hauling up water from a well.

* Automobile makers, who've spent decades manufacturing comfortable, fuel-efficient, smooth-running cars that are so enjoyable to drive we think little about walking.

* Cable TV companies that have quashed the need to venture out to a movie theater or a play or a sports game.

* Software manufacturers whose e-mail programs lessen our trips to the snail mailbox.

* Supermarkets whose nearly prepared foods remove the need to stalk live game and slaughter it.

But Hirsch and Banzhaf and other shysters like them won't do that, because they view the industry as a vulnerable cash cow primed for the slaughter. They know that public opinion toward society's hefty-weights is unfavorable, and that if they can convince just a few people that restaurants are to blame for their ballooning weight problems, then they'll succeed in suing somebody.

So what can you do?

Related Articles

* Ky. senator proposes bill preventing obesity lawsuits

Stop frivolous obesity lawsuits before they start

* Gallup poll finds public against obesity lawsuits

* Italian scientists say eating pizza may ward off cancer

* The skinny on fat fascism

Don't Hold the Pizza Just Yet

* Experts say future fat-food taxes, fines are possible

* Pizza industry officials respond to CSPI report

* CSPI to release pizza study results May 17

Call your representatives on Capitol Hill and tell them you support pending legislation to stop frivolous lawsuits against foodservice companies before they start. Two such bills, the Personal Responsibility in Food Consumption Act (H.R. 339) and the Commonsense Consumption Act (S. 1428) are garnering support daily, which makes their passage appear promising.

Secondly, be transparent about nutritional information. The only real sticking point in the recent McDonald's suit was the fact that the company appeared to make no convincing effort to ensure customers had easy access to nutritional information about its foods.

Many smart operations have posted their nutritional information on their Web sites, but if your company lacks one, at least have the facts available in printed form.

Will anyone ever request that information? It's not likely. But it never hurts to be prepared, and preparation at every level for the looming legal battle ahead will be key to victory.

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