- The Washington Times - Wednesday, January 26, 2005

A reinstated obesity lawsuit against McDonald’s may have larger implications for the restaurant and food industries, lawyer and consumer advocacy groups said.

The 2nd U.S. Circuit Court of Appeals in New Yorkruled Tuesday that the Oak Brook, Ill., hamburger giant must face part of a lawsuit brought by New York teenagers who say McDonald’s food and its misleading advertisements caused their obesity.

U.S. District Judge Robert Sweet had dismissed the suit, saying it did not present enough evidence to connect the teens’ obesity with the fast food.

The ruling allows the plaintiffs to demand documents from McDonald’s by proceeding to the discovery phase in the court case. It came on the day “Super Size Me,” a documentary in which director Morgan Spurlock eats only at McDonald’s restaurants for 30 days and gains 25 pounds, was nominated for an Academy Award.

McDonald’s Corp. said Tuesday the company was “confident this frivolous suit will once again be dismissed,” adding that the ruling was “strictly procedural.”

The lawsuit has picked up speed at a time when 64 percent of the American population is overweight or obese, according to recent data from the Centers for Disease Control and Prevention.

Since the lawsuit was filed in 2002, McDonald’s has phased out its supersize servings, reformulated its Chicken McNuggets, and introduced healthier menu options including salads and yogurt parfaits.

Lawyer Joseph McMenamin, who has defended companies in class-action asbestos lawsuits, advised fast-food restaurants to monitor the case carefully.

The bar that is pushing the obesity lawsuits “is filled with able people, well-funded and organized. It would be a mistake to underestimate its creativity and capabilities,” said Mr. McMenamin, a partner at the Richmond office of the national law firm McGuireWoods LLP.

“When this first came out, we teased [that] restaurants would have to put warning labels on their hamburgers. This opinion seems to be headed in that direction,” said Reid Cox, general counsel for the Center for Individual Freedom, a free-market-oriented advocacy group in Alexandria.

He also said he was worried the appeals court decision would extend beyond the fast-food industry and affect advertising for businesses operating in New York.

“New York has basically opened its courts up to allow more people to sue, and that’s incredibly dangerous,” he said.

Restaurant chains including Wendy’s International Inc., the Dublin, Ohio, hamburger chain that said yesterday it would add fresh fruit to its menu, declined to comment.

Food companies and fast-food restaurants have added healthier fare and provided more nutritional information for their products in the past few years, partly to protect themselves from the threat of obesity-related lawsuits.

But trial lawyers who want to hold the fast-food industry responsible for America’s extra weight said Tuesday’s decision gives validity to their cause.

George Washington University law professor John Banzhaf III, who is heading the lawsuit movement, said the decision gives the lawyers access to secret documents about McDonald’s marketing and advertising practices.

While the discovery phase may not uncover any illegal procedures, it may shed light on practices that could embarrass the company or tarnish its image, Mr. Banzhaf said.

“We’re definitely back on track,” he said.

Congress could derail the trial by passing a bill that would prohibit obesity-related lawsuits against the food industry, said Michael Jacobson, executive director of the Center for Science in the Public Interest, a Washington health group that has been critical of junk food.

Last year, the U.S. House passed a bill, dubbed the “cheeseburger bill,” that insulated the food industry from obesity suits. But the measure did not pass the Senate.

Mr. Jacobson said he expects a similar bill to be introduced in the 109th Congress.

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