Product Liability Litigation Against the Food Industry - International Law Office

Legal Standards Applied in Cases Involving the Food Industry
Legislation
Clogging the Arteries and Clogging the Courts?
Comment

Restaurants and food manufacturers are increasingly being named in lawsuits alleging long-term health problems resulting from what some might say are poor diet choices made by the plaintiff. These lawsuits are infused with questions of common sense and personal responsibility. To some, food consumption lawsuits illustrate the litigiousness of American society; to others, they represent a long-overdue advance in societal regulation.

There is a longstanding debate over the role of personal responsibility and common sense in product liability actions and how what are viewed as issues having social costs ought to be dealt with, whether through the court system or by legislation.

Legal Standards Applied in Cases Involving the Food Industry

Early product liability lawsuits against the food industry typically involved claims falling into defined categories: food contamination, the presence in food of foreign substances and 'exploding beverage bottle' litigation.(1) However, more recent cases filed against the food service industry have expanded those claims and now allege negligence though the production of less-than-healthy food products. The injuries alleged in these cases are based largely on the food consumption choices of the consumer and thus implicate the plaintiff's role in causing the injury alleged. Issues of contributory negligence, comparative negligence, assumption of the risk, misuse of the product and obviousness of the claimed defect must be examined.(2) These defences assess the responsibility of the plaintiff and his or her use of common sense.

Although still few in number, lawsuits related to food consumption appear to be on the rise.(3) Recent examples include lawsuits against various fast-food chains, the founders of the Atkins diet and a popular cookie manufacturer. The common theme among recent lawsuits involves allegations of negligent production of unhealthy food products and injuries of obesity or other health-related problems.

In 2002, for example, an individual plaintiff filed a putative class action suit in New York state court against McDonald's Corporation, Burger King Corporation, Wendy's International and KFC Corporation alleging negligence, failure to warn and adequately label food products, and violation of the New York Consumer Protection Act Sections 349 and 350.(4) In that case, Barber v McDonald's, the named plaintiff claimed that as a result of the defendants' products, the putative class members became obese and developed a number of health-related problems.(5) This case set the stage for obesity-related lawsuits.

In Pelman v McDonald's Corp(6) two New York teenagers sought damages for the health conditions, including obesity, that they attributed to frequently consuming McDonald's products over the course of several years (allegedly as often as twice a day, five days a week).(7) The plaintiffs brought claims under theories of fraud, negligence and failure to warn.(8) The trial court initially dismissed the case, noting that the case presented questions of "personal responsibility, common knowledge and public health", as well as "the role of society and the courts in addressing such issues".(9) The court concluded that the plaintiffs had failed to allege "that the McDonalds' products consumed by the plaintiffs were dangerous in any way other than that which was open and obvious to a reasonable consumer."(10) In using the 'open and obvious' legal standard, the Pelman court placed a degree of responsibility on the plaintiffs to use common sense in consuming fast food. The court indicated that the plaintiffs had failed to:

"allege either that the attributes of McDonalds [sic] products are so extraordinarily unhealthy that they are outside the reasonable contemplation of the consuming public or that the products are so extraordinarily unhealthy as to be dangerous in their intended use."(11)

The court pointed out that it is "well known that fast food in general, and McDonald's products in particular, contain high levels of cholesterol, fat, salt and sugar, and that such attributes are bad for [one's health]".(12) Appealing to personal responsibility, the court stated that if a person:

"knows or should know that eating copious orders of supersized McDonald's products is unhealthy and may result in weight gain (and its concomitant problems) because of the high levels of cholesterol, fat, salt and sugar, it is not the place of the law to protect them from their own excesses."(13)

On appeal, however, the US Court of Appeals for the Second Circuit reinstated claims made in Pelman that McDonald's violated a section of New York's Consumer Protection Act when it engaged in allegedly deceptive marketing regarding the health benefits of its food.(14) This reinstatement of the case on the basis of violation of New York's Consumer Protection Act appears essentially to allow the plaintiffs to sue for the same harm (obesity) through a different legal mechanism.(15) Some have suggested that attacking the food service industry in this fashion, through state consumer protection statutes, may have more staying power than personal injury lawsuits.(16)

Most recently, an individual filed a suit against Atkins Nutritionals, Inc and the estate of Dr Robert Atkins, founder of the Atkins diet.(17) The plaintiff in that case "alleg[ed] that the low-carb, high-fat meal plan clogged his arteries and threatened his health".(18) He claimed that his cholesterol "rose from a normal 146 to an unhealthy 230" over the two years and six months during which he followed the Atkins diet.(19) By October 2003 he purportedly needed a heart angioplasty to unclog his arteries.(20)

The Atkins Case raises issues concerning the First Amendment and free speech, since the plaintiff did not buy any food product itself but rather a book about the Atkins diet. However, the case still raises certain questions from a product liability standpoint. Should a consumer be held responsible for common knowledge about the value of a balanced diet versus a diet that emphasizes fatty foods as a key component? Should a food manufacturer (or founder of a diet programme) be held liable for the failure of a consumer to monitor his or her own health and food consumption choices? As one critic noted: "I'm just asking here for some sense of responsibility taken by the consumer, and also just some pure common sense."(21)

Legislation

The potential change of legal standards has led some to suggest changes in legislation as a means of combating increased litigation and what they view as an apparently decreased role of common sense and personal responsibility. As a result of the threat of litigation in the food industry, legislation at both the federal and state level has been introduced as a way to combat what some view as frivolous lawsuits. Commonsense Consumption Acts, also known informally as 'cheeseburger bills', are designed to halt obesity lawsuits, and have been passed in 18 states and are currently pending in 16 states.(22) Louisiana was the first state to pass such legislation in June 2003.(23) By the beginning of 2005, 14 states had passed cheeseburger bills.(24) The Senate and House of Representatives have also introduced similar bills in Congress.(25)

On March 10 2004 the US House of Representatives passed the Personal Responsibility in Food Consumption Act (HR 339) by a vote of 276 to 139. The purpose of the act was described as:

"[t]o prevent legislative and regulatory functions from being usurped by civil liability actions brought or continued against food manufacturers, marketers, distributors, advertisers, sellers and trade associations for claims of injury relating to a person's weight gain, obesity or any health condition associated with weight gain or obesity."(26)

As noted by the representative who proposed the bill:

"This legislation does not preclude suits from false advertising, mislabelling of food, adulterated foods or injuries from eating tainted food. The gist of this legislation is that there should be common sense in the food court, not blaming other people in the legal court."(27)

The sponsor further noted that "[m]ost people have enough common sense to realize that if they eat an unlimited amount of french fries, milkshakes and cheeseburgers without exercising, it can possibly lead to obesity".(28) Arguing in support of the bill, its sponsor stated:

"We need to get back to the old-fashioned principles of common sense, of personal responsibility and get away from this new culture where everybody plays the victim and sues others for their problem."(29)

The bill was reintroduced in the House as HR 554 during the 109th Congressional Session this year. It was recently ordered to be reported on May 25 2005.(30) A similar version of the bill was introduced to the Senate as S 908, the Commonsense Consumption Act of 2005, on April 26 2005.(31)

Clogging the Arteries and Clogging the Courts?

Whether cases brought against the food service industry ought to be dealt with through the court system or through legislation involves the question of whether a plaintiff should automatically be allowed his or her day in court versus whether society has a greater interest in preventing what some view as frivolous lawsuits from reaching the court dockets. The debate also questions whether the court system or the legislature is better suited to decide issues of personal responsibility and common sense. Some argue that the courts should decide on the frivolousness of a lawsuit and that the proposed legislation "would undermine and insult our state judiciaries in the various states around the country, and the state legislatures and the whole concept of federalism".(32) Others argue that such legislation would give the food industry an advantage and deprive the plaintiffs of their day in court, where judges and juries can decide on the matter.(33)

The recent threat of litigation to the makers of ice cream also raises concerns that the recent push to litigate against the food service industry will clog court dockets with frivolous lawsuits.(34) Some litigators appear to view lawsuits against food manufacturers as the next big area of focus.(35)

Making arguments similar to those made against the new Commonsense Consumption Acts, proponents of the new legislation argue that "the legal campaign against the food industry threatens the separation of powers" and that "[n]ationally coordinated lawsuits seek to accomplish through litigation that which has not been achieved by legislation and the democratic process".(36) In other words, attacks on food manufacturers through litigation have the potential indirectly to impose standards on the food manufacturers that have not been imposed through legislation or the Food and Drug Administration. For example, litigators successfully influenced Kraft Foods to remove trans-fat from Oreo cookies simply by filing a lawsuit in California on May 1 2003,(37) although the suit was voluntarily dismissed two weeks later.(38) While the Food and Drug Administration (FDA) recommends low-level consumption of trans-fat, it had not issued a mandate to remove the ingredient from Oreo cookies.(39)

Through the Kraft example, one can see how litigation or threatened litigation may force regulation of the food industry in a way that the FDA may not have addressed or even contemplated. Therefore, the tension between litigation and legislation remains.

Comment

Earlier food product liability cases appeared to be more focused on a more obvious fault of the restaurant or food manufacturer. Permitting a case to proceed against a restaurant or food manufacturer when the harm caused may be based on the consumer's lack of moderation may contradict traditional notions of personal choice and responsibility. While debate rages as to whether this dilemma is more appropriately addressed in either the court system or the legislature, if at all, many will likely agree that personal responsibility and common sense need to be enforced at least to a certain degree in order to reduce the increased litigiousness of society.

For further information on this topic please contact Mary T Yelenick or Nicole Maddox at Chadbourne & Parke LLP by telephone (+1 212 408 5100) or by fax (+1 212 541 5369) or by email (myelenick@chadbourne.com or nmaddox@chadbourne.com).

Endnotes

(1) See, for example, Averitt v Southland Motor Inn, 720 F 2d 1178 (10th Cir 1983) (defendant held liable when plaintiff became sick after eating contaminated food from defendant hotel resulting from unsanitary work conditions); Jackson v Nestle-Beich, Inc, 147 Ill 2d 408 (1992) (defendant held liable when plaintiff broke a tooth on a pecan shell embedded in defendant's candy product); Early-Gary, Inc v WM Walters, 294 So 2d 181 (Miss 1974) (defendant manufacturer found liable for injuries caused when a ketchup bottle exploded upon tapping by plaintiff).

(2) Vargo, John F, Products Liability Practice Guide Section 15.07 (2005).

(3) Park, Michael Y, "Lawyers See Fat Payoffs in Junk Food Lawsuits", www.foxnews.com/story/0,2933,43735,00.html, January 23 2002, last visited May 26 2005.

(4) Barber v McDonald's Corp, No 23145/2002, (NY Sup Ct filed July 13 2002).

(5) Id.

(6) 237 F Supp 2d 512 (SD NY 2003).

(7) Pelman v McDonald's Corp, 02 CV 7821 (RWS) (2d Cir filed February 12 2003).

(8) Id.

(9) Pelman, 237 F Supp 2d at 516.

(10) Id at 541.

(11) Id at 532.

(12) Id.

(13) Id at 533.

(14) Pelman v McDonald's Corp, 396 F 3d 508 (2d Cir 2005).

(15) NY Gen Bus Law Section 349.

(16) Goodwin Proctor LLP, "Obesity Litigation - The Next 'Tobacco'?", library.findlaw.com/2004/Jul/22/133526.html, last visited May 15 2005.

(17) "Man Sues Atkins over Heart Problems", www.cnn.com/2004/HEALTH/diet.fitness/05/27/atkins.suit.ap/, last visited June 2 2004.

(18) Id.

(19) Id.

(20) Id.

(21) Bender, Steven, Letter, New York Times, May 31 2004, late ed sec A:16.

(22) 32 Prod Safety & Liab Rep (BNA) No 22, at 521 (May 31 2004); National Restaurant Association, "State Frivolous-Lawsuit Legislation", www.restaurant.org/government/state/nutrition/bills_lawsuits.cfm, last visited May 26 2005.

(23) "'Commonsense consumption' laws gain momentum", February 27 2004, www.restaurant.org/news/story.cfm?ID=166, last visited July 19 2004.

(24) "Don't Blame the Burgers", USA Today, January 31 2005, pg 10A.

(25) See Personal Responsibility in Food Consumption Act, HR 339, 108th Cong (2003); Commonsense Consumption Act of 2003, S 1428, 108th Cong (2003); Personal Responsibility in Food Consumption Act, HR 554, 109th Cong (2005); Commonsense Consumption Act of 2005, S 908, 109th Cong (2005).

(26) HR 339.

(27) 150 Cong Rec H 946, H948 (emphasis added).

(28) Id.

(29) Id.

(30) See thomas.loc.gov/, last visited September 6 2005.

(31) Id (no records found regarding final decisions in the Senate on the Commonsense Consumption Act of 2005). See also Personal Responsibility in Food Consumption Act, HR 554, 109th Cong (2005). The original legislation was reintroduced to the House and Senate this year in the 109th Congressional Session through HR 554 and S 908.

(32) 150 Cong Rec H 946, H948.

(33) Id at H949.

(34) "'Coronary in Cone' Companies Threatened With Lawsuits for Failing to Warn about Artery-Clogging Fats and Calories", banzhaf.net/docs/icecreamltr.html, last visited July 26 2004.

(35) Goodwin Proctor LLP, "Obesity Litigation - The Next 'Tobacco'?", library.findlaw.com/2004/Jul/22/133526.html, last visited May 15 2005.

(36) 150 Cong Rec H 946, H946.

(37) BanTransFats.com, Inc v Kraft Foods North America, Inc, No CV 032041, Calif Super, Marin Co (voluntarily dismissed).

(38) "Non-profit Sues OREO Maker, Dismisses Two Weeks Later", 2-18 Mealey's Prod Liab & Risk 5, Volume 2, Issue #18 (2003).

(39) Id.