DISPOSITION: Denied in part, Affirmed in part.

JUDGES: Authored by Ryan Piela and John Henry Heckendorn, with whom Chief Justice Jim Hanson joins in part, dissenting in part.

ASHLEY PELMAN et. al., Appellants v. MCDONALD”S CORP., Respondent


October 25, 2003, Filed

PRIOR HISTORY: Appeal from U.S. Court of Appeals for the Second Circuit Docket No. 03-9010. Date Decided: January 25, 2005.

COUNSEL: For Appellant(s): Joe L. Wheeler, Eugene, OR.

For Respondent(s): Josh R. Meuth Alldredge, Pullman, WA.

Piela and Heckendorn join in all parts of this decision.

Hanson dissents from sections D and E.

A.)   FACTS OF THE CASE: The Plaintiffs sued The McDonalds Corporation on the grounds that the company intentionally misled consumers about the health information of McDonalds’ products through false advertisements. According to the Plaintiffs, the consequences of McDonald’s consumption may have included declining health, coronary heart disease, and weight gain. The Respondent denies any liability involved with the Plaintiffs’ decisions to consume the corporation’s food products. Respondent claims and Appellant rejects that pursuant to the Attorney General agreement, the corporation provides enough information to consumers to make a conscientious decision about their consumption.


It is true that Jazlen Bradley and Ashley Pelman, the Plaintiffs in this case, are overweight and unhealthy. The Plaintiffs have also proven that obesity is connected to other health problems such as diabetes, coronary heart disease and early death as noted in Pelman v. McDonald's 02 Civ. 7821, 2003. However, the Plaintiffs’ obesity and health problems have not been connected sufficiently to McDonalds’ food. The Plaintiffs failed to address the presence of other factors within their lives that could have caused the obesity and health concerns. As such, the Plaintiffs failed to isolate McDonalds as the primary cause of their health problems. In fact, McDonalds only made up 1/7th of Jazlen Bradley and Ashley Pelman’s diets. The Plaintiffs  “allegedly only ate 5 meals at McDonald’s per week” Josh Alldredge, Brief for the Respondent, 2009. This leaves a vast amount of the Plaintiffs’ consumption, as well as their other nutritional and exercise practices, under question. As the Second Circuit court noted: “what else did the plaintiffs eat? How much did they exercise? Is there a family history[?],” Pelman v. McDonald's, 02 Civ. 7821, 2003. In order to prove that McDonalds was the causal factor, “the Complaint must address these other variables and, if possible, eliminate them or show that a McDiet is a substantial factor despite these other variables” Pelman v. McDonald's, 02 Civ. 7821, 2003. Since the Plaintiffs did not eliminate these other variables, or concretely address them, then McDonalds Corporation is not legally responsible for Ms. Pelman’s and Ms. Bradley’s obesity even if it is possible that the food may be one of the contributing factors.


            McDonald's food can be a general cause of obesity and does present a threat to health however, only when over consumed. Fast food—including McDonalds—frequently is lumped into unhealthy categories of food. The previous court acknowledged 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" Pelman v. Mcdonalds, 237 F. Supp. 2d at 532, 2003. The national sensation Super Size Me highlighted the unhealthy nature of fast food and specifically McDonalds. Also, the presence of unhealthy trans fats—especially in fast food—became a national talking point in 2005 and brought the detrimental aspects of junk food to light for the public.

However, a large distinction arises between the general knowledge of all junk food and the specific products of each item at a McDonald’s restaurant. Although the general public knows that fast food is junk food, they do not know the nutritional contents of each specific item at a McDonald’s store. The general public cannot be expected to make informed choices based on the memorization of nutrition information they read on a web page. This is due to the fact that there are too many products and too many different restaurants, which cook their food based on the region, and that every specific food item is not the same.

Despite the lack of common knowledge about individual food subjects, the food products are still deleterious through over consumption. According to the Respondent, “the fries themselves do not contain cholesterol, though they may over an extended period of consumption contribute to raised cholesterol levels within the body” Josh Alldredge, 2009. In fact, McDonald’s has only been proven to affect health negatively over an extended period of time. If utilized correctly, a choice that is up to the consumer, then according to the American Dietary Association “all foods can fit into a healthy diet and what's most important is eating a balanced diet over time” (McDonald’s Corp.). In fact, through moderation, McDonald’s can be part of a healthy lifestyle, the same way as caffeine and mayonnaise have become a staple in many healthy Americans’ diets. Doctor Melissa Stevens—who is part of the Preventative Cardiology at Cleveland Clinic’s Miller Family Heart and Vascular Institute—points out that “McDonald’s can be part of a healthy diet if the consumer informs his or herself about the nutritional value of the product and stays smart about including variety in his or her diet” Josh Alldredge, 2009. McDonald's may be part of the cause, but its liability cannot rest on consumers that will not eat in moderation. Instead, McDonald's liability depends on a balance between McDonald’s honesty in providing nutrition information and the consumers’ responsibility in making good decisions in their dietary choices.


            In cases such as that before us, “liability is imposed only when the product has an attribute not reasonably contemplated by the purchaser or is unreasonably dangerous for its intended use" Huppe v. Twenty-First Century Foods, 130 Misc.2d 736, 738, 497 N.Y.S.2d 306, 1985. In Pelman et. al. v. McDonalds Corp—and if the prior binding contract with the Attorney General of New York was carried out—then neither of these tiers would be satisfied  due to the fact that first, the unhealthy aspects of McDonalds food would be well known and second, that McDonalds food is not unreasonably dangerous for its intended use. However, as it stands now, without the fulfillment of the prior binding contract with the Attorney General of New York, then McDonalds does violate the first tier of consumer contemplation due to the fact that the nutritional facts of each and every specific McDonald’s food item is not common knowledge. Even though McDonalds makes some effort to satisfy both of these tiers, they must still fulfill the Agreement with the New York Attorney General in order to rid them of liability. This section will address McDonald’s general liability, prior to the Attorney General Agreement.

McDonald's is not liable when it provides the necessary information and consumers are able to make a conscientious decision about their eating choices. When free choice becomes an illusion “for instance, by the masking of information necessary to make the choice, such as the knowledge that eating McDonalds with a certain frequency would irrefragably cause harm -- that [is when] manufacturers should be held accountable” Pelman v. McDonald's, 02 Civ. 7821, 2003. In such a case, consumers would be unable to contemplate the dangerous effects of the product. As the previous court stated, “consumers cannot be expected to protect against a danger that was solely within McDonalds' knowledge. Thus, one necessary element of any potentially viable claim must be that McDonalds' products involve a danger that is not within the common knowledge of consumers” Pelman v. McDonald's, 02 Civ. 7821, 2003. However, since the dangerous effects of fast food can be contemplated, then the knowledge is well within the over-consumers’ view and therefore McDonalds cannot be held fully liable.

If anything, McDonald’s has worked to reduce the potential for confusion. Under Federal legislation restaurants are not restricted in the same way as pharmaceutical companies, which must disclose all potential side effects of their product. Instead, “the full disclosure of the nutritional information of a company’s product is dependent on the structure of the business” (Meuth 2009, 4). Restaurants are protected from disclosure by the Nutrition Labeling and Education Act in order to maintain proprietary recipes. The Court has already ruled that Plaintiffs' claims to the New York General Business Law were preempted by Federal Cigarette Labeling and Advertising Act (Small v Lorillard Tobacco Co. 1998, 1st Dept). Small v Lorillard parallels effectively with the current case. The Court’s ruling there establishes that when New York Business Law regulations directly clash with federal labeling regulations, the Court shall preference the federal regulations. Absent proof that a product is foreseeably dangerous, McDonald’s does not have an a priori responsibility per relevant legislation to provide nutritional information. Even so, McDonald’s has disclosed all nutrition facts online, having targeted the internet as the most effective means of mass communication. “McDonald’s has gone above and beyond its duty as a food producer” (Meuth 2009, 5).But at a minimum, McDonald’s is not independently liable for failure to provide nutritional information.

One could argue that even though the nutritional information is provided, it is not easily accessible for the consumer. The three clicks are not easy to follow and this Court cannot expect consumers to have specific knowledge about the products or to have access to Internet at the time of purchase. This argument would only apply if the Appellant was able to demonstrate harms incurred directly because of inability to access specific nutritional information. We do not feel that the Appellant has succeeded in establishing this proof. Furthermore, we feel that whether McDonald’s nutritional information is sufficient is determined by the degree of responsibility incurred by the specific habits of the consumer. In this case, the Plaintiffs’ high rate of consumption means that deficiencies in McDonald’s nutritional disclosure are irrelevant in the face of the Plaintiff’s high consumer responsibility.


            The responsibility of consumers, when it comes to product consumption, is to educate themselves. In this case, that would require the parents of Jazlen Bradley and Ashley Pelman to understand what they are feeding their kids, and to recognize that fast food in general should not be a daily meal. The majority for this Court agrees that “anyone who consumes any product three to five times a week, or even more, a large degree of personal responsibility must be shown for understanding one’s own consumption.,” Josh Alldredge, 2009. Although the specifics of each McDonald’s product were not known, the general causation of fast food as a whole and as unhealthy was a known aspect that should weigh on the consumers’ responsibilities.

In conjunction with McDonald’s duty as a restaurant, a majority of the responsibility also lies with the consumer to self educate. In a case of such over consumption, McDonald's provides the information necessary for consumers to make a conscientious decision about such a large aspect of their lives. Although individual nutritional information packets were not provided, the consumers should understand the impact that fast food in general will have on their overall health. McDonald’s liability is also not present because “if consumers know (or reasonably should know) the potential ill health effects of eating at McDonald’s [or any fast food], they cannot blame McDonald’s if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonald’s products” Pelman v. McDonald's, 02 Civ. 7821, 2003. The Plaintiffs failed to show that they were unaware of the unhealthy aspects of all fast food and have therefore failed to demonstrate that their decision to eat mainly fast food was their responsibility and not McDonald’s responsibility.

Ultimately, the liability lies on the consumer and in the case of unhealthy food the consumer must demonstrate caution and moderation. In fact, “there is no allegation that McDonalds of New York has produced or distributed a product that is so dangerous that its danger is outside the reasonable understanding of a consumer” Pelman v. McDonald's, 02 Civ. 7821, 2003. This means that with a little effort, the Plaintiffs could have fully educated themselves about the health detriments of fast food in general. Instead, even though McDonald’s food made up 1/7 of their diet, the Plaintiffs failed to take the responsibility for self-educating themselves about their general intake as a whole. 

F.) McDonald’s advertising is not deceptive:

            The District Court dismissed the Plaintiff’s original claims on the basis that the Plaintiffs did not articulate specific examples of deceptive advertisements in their original brief, and instead “rely on facts outside the pleading” (Pelman v. McDonald’s Corp., 2003 U.S. Dist. S.D.N.Y., 2003). The Court extended to the Plaintiff the opportunity to provide specific examples in their appeal brief, (on the basis of Fed. R. Civ. P. 56). As the Court in Fonte v. Board of Managers of Continental Towers Condominiums ruled in a similar case, we “will not consider statements outside the pleadings in reaching its holding.” Consequently this decision can only respond to the explicit citations included in the Appellant brief.

            The plaintiffs center their deception claims on sections 349 and 350 of the New York General Business Law. However, the New York General Business Law does not assert that the absence of negative details in an advertisement necessarily constitutes deceptive advertising. The Court reinforced this interpretation when it ruled on the New York General Business Law in 1998, declaring that the “plaintiffs' allegations of misrepresentation did not furnish sufficient examples of misrepresentations on which they relied necessary to support [a] prima facie case that defendants defrauded plaintiffs by means of affirmative misrepresentations” (Small v. Lorillard Tobacco Co. 1998, 1st Dept). As such, a positive focus in an advertisement is insufficient to prove misrepresentation. Instead a deceptive advertisement must directly misinform its audience about a specific aspect of a product. The appellant cites a McDonald’s advertisement that claimed “We toss a fresh mix of gourmet greens in the kitchen each and every day.” The appellant then reveals that McDonald’s salads include “MSG, various sugars, and trans-fatty acids (in the form of several partially hydrogenated oils” (Wheeler 2009, 5). However, these facts do not directly interact: the first does not mischaracterize the second. The quality of the lettuce has no bearing on the other ingredients that are used to create the final salad product. Moreover, the Appellant does not imply any flaw in the depiction of the lettuce. It is true that McDonald’s chooses to highlight a positive ingredient rather than ingredients with negative connotations. Nevertheless, this advertising technique is consistent with the New York General Business Law.

            Furthermore, the advertisements under scrutiny are not deceptive from a practical perspective. Under the New York General Business Law, the only law that the McDonald’s advertisements have allegedly violated, “the standard for whether an act or practice is misleading is objective, requiring a showing that a reasonable consumer would have been misled” (Oswego Laborer’s Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 1995). The idea that a reasonable consumer would not understand that a salad consists of more than just lettuce, no matter how fresh, is clearly erroneous. The appellants characterization of the slogan “cholesterol free fries” as deceptive is similarly flawed (Wheeler 2009, 5). As far as we can tell, this slogan was in good part designed in response to the well publicized Sharma v. McDonald’s case, in which Hindu vegetarians sued McDonald’s for failure to disclose that its french-fries were prepared in a beef extract, causing them to have high quantities of cholesterol. The slogan in question functions as a means of distinguishing McDonald’s new fries from pre-lawsuit fries that had contained cholesterol.

Moreover, ruling that the “cholesterol free fries” characterization is deceptive would set an egregious precedent. There are myriad fat free products on the market, the consumption of which can inevitably be indirectly linked to an increase in body fat for the regular consumer. Fat free ice cream provides an obvious example. Ruling for the appellant would force a multitude of changes in product labeling across the consumer food item industry that is well beyond this court’s role. But more importantly, this demonstrates that the “reasonable consumer” would not be deceived by this advertising method. Instead, the reasonable consumer understands that, in the context of an advertisement, the term free does not eliminate potential indirect linkages, especially in cases of high consumption. Again, we feel that close examination of the specific examples cited by the Appellant demonstrates that McDonald’s advertisements are not deceptive within the New York General Business Law.

G.) McDonald’s is in violation of a binding legal agreemenT: 

Claims upon general legal statutes become irrelevant however, when McDonald’s has waived broad legal recourse in signing a specific and binding legal agreement with the New York Attorney General. In 1987, the Attorney general completed a full investigation of McDonald’s advertisements. He opined that McDonald’s had violated state consumer protection statutes and declared that McDonald's advertisements were deceptive (Pelman v. McDonald's. 07 Civ. 05710). The Attorney General further demanded that McDonald’s comply with four remedial steps; (1) to provide customers with nutritional information on all their products, at all their stores, (2) to disclose all ingredients as well as FDA required food additives and dyes, (3) to provide the information in easily understood pamphlets or brochures which will be free to all customers so they could take them with them for further study, and (4) to place signs, including in-store advertising to inform customers who walk in, and drive through information and notices would be placed where drive-through customers could see them (Wheeler 2009, 6). In 1986, the Attorney General sent a letter to McDonald’s counsel, outlining these steps and threatened a lawsuit if McDonald’s did not sign an agreement to comply (Van De Kamp 1986). Obviously McDonald’s could have challenged the Attorney General, based on the findings presented in Section A of this decision. However, as soon as McDonald’s signed the agreement proposed by the Attorney General, the company became legally bound to observe all the requirements therein.

The Attorney General acted fully within the limits of his office in his interaction with McDonald’s. In Lefkowitz v Fey the Court ruled that

Provisions of the Executive Law and the General Business Law authorizing the Attorney General to apply for an order enjoining allegedly fraudulent, illegal and deceptive practices and acts in the marketing and sale of certain products is not unconstitutional as being ambiguous, as failing to define proscribed conduct in language that is able to be understood, nor as amounting to an unauthorized delegation of legislative authority (Lefkowitz v Fey 1976). (sic)


This ruling upheld the constitutionality of sections within the New York General Business Law that specifically enable the Attorney General to act as he did when addressing McDonald’s. In fact, the ruling dismissed three distinct challenges to the power of the Attorney General. The actions of the Attorney General were not only established in state legislation, but have been upheld and maintained in Lefkowitz v Frey. 

Consequently, McDonald’s is legally bound to institute the changes outlined in the Attorney General’s letter. Yet McDonald’s vice president of marketing has admitted that “no advertisements (with the exception of the "milkshake advertisement") were ever removed or terminated although requested by the Attorney General” (Wheeler 2009, 6). More specifically, McDonald’s has failed to introduce the brochure system or in-store advertising in the majority of its New York franchises (Wheeler 2009, 3). This places McDonald’s in definitive violation of a binding legal concord.

H.) Conclusion:

This court rules that McDonald’s advertisements were not deceptive, as claimed by the Appellant. This ruling is based on the specific examples cited by the defendant, as well as the precedent that the New York courts have set regarding the New York Business Law. Moreover, McDonald’s advertisements are not deceptive from a practical perspective. Finally, the federal Nutrition Labeling and Education Act underlines that, as a general rule, restaurants are not responsible for providing nutritional disclosure. However, McDonald’s entered into prior, binding contract with the Attorney General of New York, which holds McDonald’s to a higher legal standard within the state of New York. It is this specific legal standard that McDonald’s has violated. This court affirms the right of the Attorney General to bring a complaint against McDonald’s in the appropriate court of law.


Chief Justice Hanson dissenting in part.


I agree with the majority’s opinion concerning Section B that Pelman has failed to prove McDonald’s caused her specific health problems; Section C that McDonald’s foods are generally unhealthful and dangerous when consumed in consistent doses; Section F that McDonald’s advertising is not deceptive (though it is misleading); and Section G that McDonald’s specifically is required to provide nutritional information as part of its binding legal agreement with the Attorney General.


I take issue with the majority’s reading of McDonald’s responsibility in what it concedes is their selling of a dangerous product. It is true that federal as well as general New York law does not require nutrition labeling in restaurants. But that does not absolve McDonald’s nor other restaurants from legal responsibility for providing such information to consumers. Instead, it means that general rules governing liability apply.

As such, initially, McDonald’s product is dangerous. The majority concedes this point. But the majority claims that McDonald’s product is dangerous only if consumed in “excess.” What excess obviously is going to be subject to interpretation but it is clear that McDonald’s knows that its product will be consumed excessively. As Joe Wheeler’s brief noted:

           The Plaintiff, Ashley Pelman, has purchased McDonald’s products, mostly Happy Meals and Big Macs, on average of three to four times per week from the ages of five through twelve (Pelman v. McDonald's. 07 Civ. 05710). This would classify her as a "Heavy User," a term used by McDonald's Corporation (Pelman v. McDonald's. 07 Civ. 05710). The Plaintiff, Jazlyn Bradley, has purchased and/or consumed McDonald’s foods for her entire life during school lunch breaks and before and after school, approximately five times a week, ordering two meals per day (mostly the Big Mac Meal, Chicken McNugget Meal or Fish Meal sandwiches) (Pelman v. McDonald's. 07 Civ. 05710). This would classify her as a "Super Heavy User," another term used by McDonald's Corporation (Pelman v. McDonald's. 07 Civ. 05710). McDonald’s Vice-President of Marketing for the United States, David Green, has testified in prior proceedings that the Defendant specifically targets “Heavy Users” and “Super Heavy Users” in their advertising campaigns in an effort to increase the frequencies of purchases at their stores and consumption of their products (Pelman v. McDonald's. 07 Civ. 05710). McDonald’s present marketing goal for “Heavy Users” is approximately twenty times per month for every fast food user (Pelman v. McDonald's. 07 Civ. 05710).

It is clear that McDonald’s not only is aware that its customers are consuming its product at what the majority calls “excessive” levels, it is encouraging them to eat even more.

            Even under the majority’s crimped reading of product liability, McDonald’s is at fault. The majority notes that: “In cases such as that before us, “liability is imposed only when the product has an attribute not reasonably contemplated by the purchaser or is unreasonably dangerous for its intended use" Huppe v. Twenty-First Century Foods, 130 Misc.2d 736, 738, 497 N.Y.S.2d 306, 1985. It is imminently obvious that McDonald’s product is unreasonably dangerous for one of its intended uses, that of the heavy and super heavy user.

            But it is not just McDonald’s realization of the dangers of its product, tort law specifically makes McDonald’s liable. As Section 2 of the Restatement (Third) of Torts: Products Liability, states: A product:

(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

McDonald’s is legally obligated to provide information to its customers of its danger to health. The Attorney General’s agreement is a solid step in the right direction but also would require notice that excessive consumption of aspects of its products is harmful (saturated fats, simple carbs, sugar, etc.).

            The majority claims that a web page with nutritional information is sufficient. It is not. The web site is difficult to traverse and nutrition information on the page, while three clicks in, is extremely difficult to find. Further, as you search, repeated messages about how healthy McDonald’s food pops up. While this lack of information on McDonald’s part is sufficient for us to declare that their advertising is not deceptive, it is not sufficient for warning consumers of the dangers of eating some of their foods. They have a legal obligation to provide clear nutritional information at the point of purchase.

            And, while it is probably true that your average person knows generally that McDonald’s foods are potentially unhealthy, it does not mean that everyone knows that. And, further, it does not mean consumers know a sufficient level of detail needed to make truly wise eating decisions. Ask yourself now: Which has more saturated fats: a McDonald’s burger or a Premium Southwest Salad with Crispy Chicken? What has more carbs: a small fries or a double cheeseburger? Do you really know the answers? If you sought to memorize the relevant information from McDonald’s web page, you’d be looking at something that is 18 pages in length. Go ahead, try it at

Now, couple the many bits of information for just McDonald’s with all the other restaurants you wish to eat at, and you have consumers unable to, as the majority requests, “to take the responsibility for self-educating themselves about their general intake as a whole.” (op cite) And when that food is as dangerous as the majority concedes, the lack of information is not permitted under the law as I understand it.


As such, I respectfully dissent.