The New York Times, February 3, 2003, Monday
EDITORIAL DESK
When McDonald's first rolled out the Chicken McNugget in the 1980's, comedians could always get a laugh by asking, with a leer, just what part of the chicken the McNugget was supposed to be. But thanks to a recent federal court ruling, the composition of the McNugget is no laughing matter.
The Chicken McNugget, a lab experiment of an entree, larded with ingredients like TBHQ, a flavorless ''stabilizer,'' and Dimethylpolysiloxane, an ''anti-foaming agent,'' is Exhibit A in a lawsuit that could transform the fast-food industry. And it is the McNugget's artificiality -- the judge labeled it a ''McFrankenstein creation'' -- that is putting McDonald's on the legal defensive.
The showdown over the Chicken McNugget comes in a lawsuit by Ashley Pelman and Jazlyn Bradley, two New York girls who say that McDonald's is to blame for their obesity and health problems. Plaintiffs' lawyers have high hopes. Just as Big Tobacco has been held liable for cancer, they say, Big Food should pay for hypertension, diabetes, and heart disease. With obesity costing Americans an estimated $117 billion in 2000 -- and on its way, according to the surgeon general, to causing as much preventable disease and death as cigarettes -- the damage awards could be enormous.
Critics of the suit call it litigation run amok. The Center for Consumer Freedom, a food and beverage trade group, has taken out ads showing a man with a paunch and the caption: ''Did you hear the one about the fat guy suing the restaurants? It's no joke.'' An industry spokesman has thrown the blame right back on customers, saying that ''anyone with an I.Q. higher than room temperature will understand that excessive consumption of food served in fast-food restaurants will lead to weight gain.'' And the media have largely joined in the skepticism, coining a new word along the way -- McScapegoat.
Fast-food litigation has been greeted coolly so far because it appears to run up against a core American value: personal responsibility. Judge Robert Sweet, who is hearing the Pelman suit, dismissed it earlier this month for just this reason. If customers know the risks, he held, ''they cannot blame McDonald's if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonald's products.''
If Judge Sweet had stopped there, it would have been a happy day in McDonaldland. But the reason Pelman v. McDonald's Corp. may yet be a problem is that the judge went on to explain how the plaintiffs could fix their suit, and gave them time to do it. The key, he said, is to focus on the fact that customers may not have a reasonable chance to learn what they are getting into when they eat at McDonald's.
Judge Sweet didn't absolve fast-food customers of the need for self-restraint. Instead, he grounded the case in a basic doctrine of tort law: that certain products may be unreasonably dangerous because they contain items that are ''outside the reasonable contemplation of the consuming public.'' In other words, it is O.K. to sell unhealthy food. But when an item is substantially less healthy than it appears, a seller may be held liable for the resulting harm.
Judge Sweet offered up, by way of example, Chicken McNuggets. ''Rather than being merely chicken fried in a pan,'' he wrote, they are ''a McFrankenstein creation of various elements not utilized by the home cook.'' His decision listed 30 or 40 ingredients other than chicken, and noted that although chicken is regarded as healthier than beef, Chicken McNuggets are actually far fattier. ''It is at least a question of fact,'' he held, whether a reasonable consumer would know that a McNugget ''contained so many ingredients other than chicken and provided twice the fat of a hamburger.''
The Pelman plaintiffs may be able to find other, similarly misleading products. McDonald's suffered a legal setback last year when it paid $10 million to settle a class action by Hindus and vegetarians who sued because McDonald's had failed to disclose that even after its widely publicized switch to vegetable oil, it was still using beef in its fries.
Fully understanding McDonald's food can be difficult even with more straightforward items. Consumers who go to the McDonald's Web site might be confused to find that its ''nutrition facts'' chart for beverages contains the calories only for small beverages, a size rarely encountered in real life. (A downloadable ''nutrient card'' elsewhere on the site contains more complete data.)
McDonald's argues that the plaintiffs have only themselves to blame, since everyone knows that the highly processed food they serve is less healthy than normal food. And its Congressional allies are introducing a bill to insulate fast-food restaurants from suits of this kind.
But the company's stance bucks two key trends in American life -- healthy eating and corporate transparency. McDonald's would position itself better in the fast-food market if it communicated more openly with its customers about what they were getting. A good start would be to listen to consumer advocates and post calorie content on menu boards.
Better still, McDonald's should ramp up its fitful efforts to make its food more nutritious. The Pelman plaintiffs have plainly identified a problem. With obesity at epidemic levels -- more than 60 percent of adults are now overweight or obese -- McDonald's is doing real harm by promoting '''extra value meals'' that contain three-quarters of the calories an adult needs for a full day.
The news that it could be legally liable could hardly have come at a worse time for the company, which has just suffered the first quarterly loss in its history. If the McFrankenstein lawsuits start to win, McDonald's may find that it truly has created a monster.