030632 Lawyers Drop Key Claim in McDonald's Obesity Suit

New York - Lawyers for McDonald's Corp. urged a federal judge to dismiss a lawsuit blaming the food chain for children's obesity and said a key claim that customers were unaware its food could pose a health threat was dropped.

U.S. District Judge Robert Sweet said he would make a decision later on whether to allow the suit, which now primarily focuses on deceptive advertising claims, to proceed. He had dismissed an earlier version of the suit in January but allowed the plaintiffs to refile the complaint.

In the dropped claim, plaintiffs had alleged that Chicken McNuggets, Filet-O-Fish, French fries and other menu items are so processed with additives and other ingredients that they can pose a health hazard of which consumers are not aware.

"I think that's the sensational part of the suit. We don't need that," Samuel Hirsch, the plaintiffs' lawyer, told reporters after the hearing, saying he would leave those allegations for other lawyers to pursue.

The suit has raised fears in the food industry of a new wave of tobacco-like litigation against restaurants and manufacturers. Indeed, the possibility of bringing more suits over fattening foods was the focus of a seminar last weekend in Boston attended by anti-tobacco lawyers.

The remainder of the lawsuit focuses on false advertising claims, which McDonald's lawyer Brad Lerman said are flawed. He told the judge that a major problem with the case is that the plaintiffs did not specify what ads they had seen and could not link advertising to any injuries.

The two plaintiffs in the case, which seeks class action status, were born in 1984 and 1988.

Lerman pointed out that the plaintiffs were too young to have seen or be affected by the 1987 print ads attached as exhibits in the suit.

"There are no allegations that the plaintiffs saw any of the material that was referenced," Lerman said. He said the plaintiffs cannot claim they were injured by advertising they had not seen or heard.

Hirsch argued that he did not need to specify what ads the children had seen at this stage of the proceedings, saying the relevant point was whether their parents had seen the ads.

Sweet, in his January ruling, referred to Chicken McNuggets as a "McFrankenstein creation" of elements not used in home cooking. He said the plaintiffs could amend the suit with information backing their claim that diners have no idea what is really in their food or that the products have allegedly become more harmful because of processing.

RETURN TO HOME PAGE

E-mail: sflanagan@sprintmail.com