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McFat Trilogy

Amended Complaint in the McFat Lawsuit

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------------------------X

ASHLEY PELMAN, a child under the age of 18 years,                    Supreme Court:

by her mother and natural guardian, ROBERTA                               Index:            24809/02        

PELMAN, ROBERTA PELMAN, Individually, JAZLEN                 

BRADLEY, a child under the age of 18 years, by her Father            Federal Court Docket

and natural Guardian, ISRAEL BRADLEY, and ISRAEL                02 CV 7821 (RWS)   

BRADLEY, Individually,                                                                                                                                                                                                                   AMENDED

                                                                                                            VERIFIED                                                                                                                             COMPLAINT

                                                         Plaintiffs,

                      - against -

MCDONALD’S CORPORATION,

                                                        Defendants.

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑--------------‑----‑‑‑‑‑‑----------‑‑‑‑‑‑‑X

            Plaintiffs, by their attorney SAMUEL HIRSCH, ESQ., on behalf of themselves

and all  other similarly situated persons, upon information and belief, respectfully show

and allege as  follows:

INTRODUCTION

1.         Plaintiffs and proposed Plaintiff-Class Members bring this action on behalf of all New York State residents to secure redress from deceptive practices in the promotion, distribution, advertising,  processing and sale of certain products, hereinafter alleged, by defendant, McDonald’s Corporation, under the New York State Consumer Protection Statute, General Business Laws §349 and §350 and New York State Principles of Laws.*[1]

2.         That upon information and belief, commencing in 1987 and continuing

thereafter to present, the Defendant and its agents represented and/or attempted to allegedly mislead the users and consumers, in widespread advertising campaigns, “consumer-oriented” statements, promotions, brochures, press releases, statements, and on McDonald’s Internet website and in McDonald’s restaurants, that its certain foods, including but not limited to Chicken McNuggets, Filet-O-Fish, Chicken Sandwich, French Fries, Hamburger-beef products, were nutritional or of beneficial nutritional nature and effect to purchasers and consumers, and its products could easily be consumed as part of a balanced diet and lifestyle without any detrimental health effects.

3.         That upon information and belief, commencing in 1987 and continuing

thereafter to present, the Defendant and its agents allegedly mislead the users and consumers, in widespread advertising campaigns, “consumer-oriented” statements, promotions, brochures, press releases, statements, and on McDonald’s Internet website and in McDonald’s restaurants, that its certain foods, including but not limited to Chicken McNuggets, Filet-O-Fish, Chicken Sandwich, French Fries, Hamburger-beef products, were substantially healthier or not as detrimental to one’s health, when-in-fact, said products were hazardous or detrimental to an extent beyond which was contemplated or understood by the reasonable and ordinary Plaintiff purchaser and consumer, relying on the ordinary and customary knowledge of the community regarding the accepted characteristics and composition of Chicken, Fish, Potatoes and seasonings

4.           In fact, upon information and belief, vast medical authorities and researchers, including the Defendant’s own  Nutritional Division in France(“hereafter “Mcdonalds France”) have warned that Defendant’s certain foods are not nutritious, can not be easily be consumed as part of a balanced daily diet and that  users and children  should not consume the Defendant’s certain product more than once per week, and that such consumption beyond once per week over several years, could  have contributory detrimental effects upon such consumer’s health, including increasing risks for development of obesity, diabetes, coronary heart disease, high blood pressure, and elevated cholesterol.

                        A.        DETRIMENTAL  HEALTH AFFECTS AND RISKS

5.            The United States is experiencing substantial increases in overweight and obesity that cut across all ages, racial and ethnic groups, and both genders, has been increasing in every State in the Nation that has reached epidemic proportions. In 1999, an estimated 61 percent of U.S. adults were overweight or obese, and 13 percent of children and adolescents were overweight.*[2]

6.         Today,  there are nearly twice as many overweight children and almost three times as many overweight adolescents as there were in 1980. Approximately 300,000 deaths a year in the United States are currently associated with overweight and obesity, and as indicated  in the U.S. Surgeon General’s 2001 Report on Overweight and Obesity, “left unabated, overweight and obesity may soon cause as much preventable disease and death as cigarette smoking.” [3]

7.         The most recent data (1999) estimate that 13 percent of children aged 6 to 11 years and 14 percent of adolescents aged 12 to 19 years are overweight.  During the past two decades, the percentage of children who are overweight has almost doubled (from 7 to 13 percent), and the percentage of adolescents who are overweight has almost tripled (from 5 to 14 percent).[4] 

8.         Epidemiological studies show that obese individuals have a 50 to 100 percent increased risk of premature death from all causes, [5] and an estimated three hundred thousand (300,000) deaths a year may be attributable to obesity. [6]

9.         Additionally, overweight classification and obesity are associated with an increased risk for coronary heart disease; type 2 diabetes; endometrial, colon, postmenopausal breast, and other cancers; and certain musculoskeletal disorders, such as knee osteoarthritis. [7]      

10.       Studies have shown that both modest and large weight gains are associated with significantly increased risk of disease. For example, a weight gain of 11 to 18 pounds increases a person’s risk of developing type 2 diabetes to twice that of individuals who have not gained weight, while those who gain 44 pounds or more have four times the risk of type 2 diabetes.[8]  A 10 to 20 pound gain results in an increased risk of coronary heart disease (nonfatal myocardial infarction and death) of 1.25 times in women,[9]   and 1.6 times in men.[10]  A gain of 22 pounds in men and 44 pounds in women result in an increased coronary heart disease risk of 1.75 and 2.65, respectively.[11]

11.       In certain obese women, the risk of developing endometrial cancer is increased by more than six times.[12] Overweight and obesity are also known to exacerbate many chronic conditions such as hypertension and elevated cholesterol and such individuals also may suffer from social stigmatization, discrimination, and poor body image. [13]

B.        SOCIO-ECONOMIC RAMIFICATIONS

12.       The associated health problems and effects of obesity and overweight classification have substantial economic consequences for the United States  health care system and individuals.[14] The increasing prevalence of overweight and obesity is associated with both direct and indirect costs. Direct health care costs refer to preventive, diagnostic, and treatment services related to overweight and obesity (for example, physician visits and hospital and nursing home care).[15] Indirect costs refer to the value of wages lost by people unable to work because of illness or disability, as well as the value of future earnings lost by premature death.[16]

13.       In 1995, the total estimated (direct and indirect) costs attributable to obesity amounted to an estimated $99 billion.[17]   In 2000, the total cost of obesity was estimated to be $117 billion ($61 billion direct and $56 billion indirect).[18] Most of the costs associated with obesity is due to type 2 diabetes, coronary heart disease, and hypertension.[19]

JURISDICTION AND VENUE

14.       This Court has jurisdiction over this matter pursuant to 28 U.S.C.

1332(a) since the amount in controversy exceeds $75,000 per plaintiff exclusive of interests and costs and there is diversity of citizenship. Plaintiff further invokes the pendent and supplemental jurisdiction of this Court to hear and decide claims arising under state law, pursuant to 28 U.S.C. §1367.

PARTIES

Plaintiffs

15.       The Infant-Infant-Plaintiff, ASHLEY PELMAN,  was and still is a resident of the State of New  York, is currently fourteen years and exceeds the Body Mass Index(BMI)*[20] as established  by the U.S. Surgeon General, National Institutes of Health, Centers for Disease Control, U.S. Food and Drug Administration and all acceptable scientific, medical guidelines for the classification of clinical  obesity.*[21] She has purchased*[22] and/or consumed the Defendant’s aforementioned products in New York State stores/franchises (Happy Meals, Big Mac) on average of three to four times per week from the ages of 5 through twelve.

16.       The Plaintiff, ROBERTA PELMAN, was and still is a resident of the State of New York, is the mother and natural guardian of Plaintiff, ASHLEY PELMAN, and has purchased and/or consumed the Defendant’s products for herself and/or infant-plaintiff in New York State stores/franchises on average of three to four times per week from the ages of 5 through twelve.

17.       The Plaintiff, JAZLYN BRADLEY,  was and still is a resident of the State of New  York, is nineteen years old, and exceeds the Body Mass Index(BMI) as established  by the U.S. Surgeon General, National Institutes of Health, Centers for Disease Control, U.S. Food and Drug Administration and all acceptable scientific, medical guidelines for the classification of clinical  obesity. She has purchased and/or consumed   McDonald’s foods her entire life, in New York State stores/franchises during school lunch breaks and before and after school, approximately five times per week, ordering two meals per day(Big Mac Meal, Chicken McNugget Meal or Fish Meal sandwiches).

            18.       The proposed*[23] infant-class member Plaintiff, NIASSA BRADLEY, was and still is a resident of the State of New  York, exceeds the Body Mass Index(BMI) as established  by the U.S. Surgeon General, National Institutes of Health, Centers for Disease Control, and all acceptable scientific, medical guidelines for the classification of clinical  obesity. She has purchased and/or consumed  Defendants’ foods in New York State stores/franchises once per day for breakfast(eggs and sausages) and also once per day for lunch wherein she consumed the Kids Meal.(Happy/Mightier Meals)(Cheeseburgers and/or  McNuggets, Fries)

19.       The proposed infant-class member Plaintiff, SHAKIMA BRADLEY, was and still is a resident of the State of New York,  is seventeen years old, exceeds the Body Mass Index(BMI) as established  by the U.S. Surgeon General, National Institutes of Health, Centers for Disease Control, U.S. Food and Drug Administration, and all acceptable scientific, medical guidelines for the classification of clinical  obesity. She has purchased and/or consumed  McDonalds foods in New York State stores/franchises her entire life while in Elementary and Junior High School, almost every day, and consumed the No. 2, Double Cheeseburger Meal Combos(Double Cheeseburger, Large French Fries and beverage).

20.       The Plaintiff, ISRAEL BRADLEY, was and still is a resident of the State of New York, is the father and natural guardian of Plaintiffs,  NIASSA BRADLEY AZLYN BRADLEY, SHAKIMA BRADLEY, and has purchased and/or consumed the Defendant’s products in New York State stores/franchises for himself and/or infant-plaintiffs at least more than once per week over the course of several years.

21.       The proposed infant-Plaintiff, JULIAN TAWFIK, was and still is a resident of the State of New York,  is fourteen years old, exceeds the Body Mass Index(BMI) as established  by the U.S. Surgeon General, National Institutes of Health, Centers for Disease Control, U.S. Food and Drug Administration and all acceptable scientific, medical guidelines for the classification of clinical  obesity. He has been eating the Defendants’ specific foods from New York State stores/franchises, such as  Happy Meals, “Supersized”, double cheeseburgers, French Fries for seven years approximately 3 to 4 times per week.

22.       The Plaintiff, HAZEM TAWFIK, was and still is a resident of the State of New York, is natural guardian of Plaintiffs, JULIAN TAWFIK, and has purchased and/or consumed the Defendant’s products in New York State stores/franchises for herself and/or infant-plaintiff at least more than once per week over the course of several years.

23.       The proposed infant-class member Plaintiff, GREGORY RHYMES, was and still is a resident of the State of New York,  is fifteen years old, exceeds the Body Mass Index(BMI) as established  by the U.S. Surgeon General, National Institutes of Health, Centers for Disease Control, U.S. Food and Drug Administration and all acceptable scientific, medical guidelines for the classification of clinical  obesity, He has  purchased and/or consumed the Defendants foods in New York State stores/franchises on a daily basis for several years.

24.       The Plaintiff, DOLORES CARRION, was and still is a resident of the State of New York, is natural guardian of Plaintiffs, GREGORY RHYMES, and has purchased and/or consumed the Defendant’s products in New York State stores/franchises for herself and/or infant-plaintiff at least more than once per week over the course of several years.

25.       The proposed infant-class member Plaintiff, WILLIAM SCAGLIONE, was and still is a resident of the State of New York,  is fifteen years old, exceeds the Body Mass Index(BMI) as established  by the U.S. Surgeon General, National Institutes of Health, Centers for Disease Control, U.S. Food and Drug Administration and all acceptable scientific, medical guidelines for the classification of clinical  obesity, He has  purchased and/or consumed the Defendants foods in New York State stores/franchises on a daily basis for several years.

26.              The Plaintiff, TINA SCAGLIONE,, was and still is a resident of the State

of New York, is natural guardian of Plaintiff, WILLIAM SCAGLIONE, and has purchased and/or consumed the Defendant’s products in New York State stores/franchises for herself and/or infant-plaintiff at least more than once per week over the course of several years.

27.              Plaintiff Class members: It is estimated that there are hundreds of

thousands of New York State residents, infant-individuals  and consumers who have purchased and consumed the Defendants’ products in New York State stores/franchises and as proximate result of the aforementioned business practices, said consumption has been a significant or substantial factor in the development of their  obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and/or other detrimental and adverse health effects and/or diseases.

DEFENDANT

            28.       The Defendant McDonald’s Corporation, is the nationally known leading fast food chain, with stores throughout every state in the United States and in 120 other countries. It is a Delaware corporation headquartered at One McDonald’s Plaza, Oak Brook, Illinois. In 2001, McDonald’s U. S. sales exceeded $15.5 billion and according to accords spends over 1 billion on annual advertising,*[24] proclaims 43% of the United States market share for fast food, serving over 99 billion hamburgers, over 46 million customers every day, in 30,000 stores and does substantial business within the State of New York, and throughout the fifty United States.  In fact, a cursory review on Defendant’s website shows, there are approximately 70 of Defendant’s stores within a five mile radius of Bronx, New York, which is an average of  14 McDonald’s stores per square mile in Bronx County, New York alone.*[25]

29.       That at all times hereinafter mentioned, the Defendant, its  agents, servants, and/or employees, placed the  aforementioned goods, services, promotions, advertisements, and/or products within the “stream of commerce” within the State  of New York.

30.       That, upon information and belief, and at all times hereinafter

mentioned, the Defendants were  and still are corporations and/or legal entities engaged in the distribution, ownership retail, manufacture, sale, marketing and/or production of certain food products  within the State of New York.

31.       McDonald’s Corporation operates both company-owned stores and franchise stores. Regardless of whether a store is company-owned or franchised, McDonald’s Corporation prescribes the ingredients, qualities and quantities of the food products served therein, so as to insure that McDonald’s products sold in  all stores and/or franchises in one state or location are substantially identical, uniform, and of similar nature and effect, to food products sold in all locations and states throughout the United States.

            32.       All products sold by McDonald’s franchisees are provided by McDonald’s Corporation or approved distributors of McDonald’s. All McDonald’s franchisees are subject to quality control procedures designed to standardize the taste and quality of McDonald’s products around the country.

            33.       All media campaigns, brochures, press releases, internet website information, promotions, and/or advertisements and nutritional advices and claims for McDonald’s restaurants are drafted, handled, approved and/or coordinated through McDonald’s Corporation.

FACTUAL BACKGROUND

34.              That upon information and belief, the Defendant periodically conducts

surveys of the frequency of purchasers and consumers at its stores, and in one such survey found ¾(75%) of said consumers of its products were “Heavy Users” and of these consumers, 1/3(33.33%) were  “Super Heavy Users.”*[26]

35.              That upon information and belief, the Defendant’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 User” consumers in their advertising campaigns in an effort have them increase the frequencies of purchases at their stores and consumption of their products.*[27]

35.       That upon information and belief, McDonald’s present marketing goal

for “Heavy Users” is approximately twenty(20) times per month for every food fast user.*[28]

37.       That upon information and belief, commencing in or about 1987 and

continuing to present, the defendant and its agents allegedly made material representations in widespread advertising campaigns, brochures, promotions, press releases, statements, on McDonald’s Internet website and in McDonald’s restaurants that its specified food products and/or ingredients as hereinafter set forth were nutritious, of a beneficial nutritional nature/effect, easily part of a healthy lifestyle and were represented to appear substantially healthier, or not as detrimental, to the consumer’s health in order to increase  sales and/or increase the “Heavy Users” and other consumers’ consumption, when in fact, said material representations were misleading and contrary to medical, nutritional  and scientific studies.

38.       In April, 1987, the Attorneys General of the States of New York,

Texas and California, completed an investigation of McDonald’s advertising campaigns*[29] and found numerous violations of their states respective consumer protection statutes. In such investigations, the New York State Attorney General found that Mcdonald’s advertising  campaigns was deceptive in that, inter alia, McDonald’s  embarked upon a continuous campaign to present their food as nutritious, of a beneficial nutritional nature, healthful or of wholesome effect to consumers.

            39.       That upon information and belief, the alleged deceptive advertisements, promotions and statements, continued to be placed and remain in circulation by the Defendant for several years. Although each alleged deceptive nutritional claim as contained herein may have lasted for several years, it is further alleged, upon information and belief, that there were continuous and successive claims by the Defendant,, i.e. that its specific foods were nutritious, which continued from 1987 through the present. Therefore, it is alleged, upon information and belief, that as each alleged deceptive advertisement or claim ceased, there were new, successive and further deceptive representations by the Defendant to continue and facilitate the misleading representation and theme that: its certain foods were nutritious, of beneficial nature and effect, or not as detrimental as in fact.

40.       The Defendant’s  own Vice-President of Marketing in the United States,

David Green testified that no  advertisements (with the exception of the “milkshake” advertisements alleged herein), were  ever  removed or terminated although requested by the New York State Attorney General as hereinafter alleged, and that said advertisements continued for several years. As testified by Mr. Green:

Q:        It is alleged that…in consequence of the complaints which were           made by the three Attorneys General about this advertising campaign, McDonald‘s prematurely terminated the campaign. Are you aware that allegation was made?

                                    A:        Yes, I am

                                    Q:        Is it true of false?

A:        It is false. We continued with the campaign. The only ad that I remember that we might have changed…was the milk shake ad…but the others ran and, in fact, I think we continued the             campaign for not only a number of months but for a few years.*[30]

SPECIFIC REPRESENTATIONS

            41.       As a result of said investigation, the Defendant and the New York State Attorney General entered into a settlement agreement*[31]  whereby the Defendant agreed:

a.         to provide customers with nutritional information on all their products, at all their stores - including calories, protein, carbohydrates, fat, cholesterol and sodium, and the information would be given on an item by item basis, i.e. pickles, tomatoes, lettuce,  or on a finished product basis, i.e. chicken sandwich;

b.                  to disclose all ingredients as well as FDA required food additives and dyes;

c.                   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;

d.                  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.

The documents concerning the Attorneys General investigation and settlement agreement are annexed hereto in Exhibit F and hereby incorporated as if more fully set forth herein.

42.       That upon information and belief, continuing thereafter to present, the

Defendant has explicitly maintained that nutritional brochures are/were available in every store for New York State  consumers. As presently stated on their website “frequently asked questions”:

You may obtain nutrition information for our standard items at our restaurants or by calling our toll-free number at 1-800-244-6227.

See Exhibit G-36.

43.       That upon information and belief, in or about October, 2002, Ann

Rusniak, the Defendant’s chief nutritionist released statements to news agencies that  nutrition brochures are available in all its(McDonald’s) stores." See Exhibit G-35, attached and incorporated hereto.

42.     However, upon information and belief,  said nutritional information was not adequately available to the Plaintiff consumers at a significant number of the Defendant’s New York stores for inspection upon request or otherwise adequately available upon inspection by the Plaintiffs and Class-Members represented and promised by Defendant.

44.       A.        (1)       That upon information and belief, commencing in 1987 and continuing for several years thereafter,*[32] the Defendants began a national advertisement campaign representing their foods were low in sodium, though in-store posters and other media outlets. Specific claims  was that there was "Less than  a pinch" of salt in a regular order of their French Fries. This visual advertisement featured a few grains of salt being held between a thumb and index finger, and claimed that an average of 109 mg of sodium, less than half a cookbook pinch was placed in their fries. Said advertisement also claims that McDonald’s is “careful about the salt they add.”   See Exhibit G-1, incorporated in the complaint as if more fully set forth herein.   

(2)   That upon information and belief, commencing in and

about 1987 and continuing thereafter,  Defendant represented:

            …a pinch of salt is about an eighth of a teaspoon. Or about 250 mg of sodium. In the case of a regular order of french fries, the average is 109 mg of sodium-all in all, quite consistent with a reasonable diet.

See Exhibit G-2, incorporated in the complaint as if more fully set forth herein.

                             (3)       That upon information and belief, commencing in and about 1987 and continuing for several years thereafter, the Defendants  began a national advertisement campaign, through in-store posters and other media outlets,  that their:

 “Salt   (sodium) is down across the menu"

Although the advertisement claimed all menu items were lowered in sodium, the Attorneys General found the only items lowered in sodium on the Defendant’s menu was their pickles and sausage.  See Exhibit G-2, incorporated in the complaint as if more fully set forth herein.        

            B.        (1)       That upon information and belief, commencing in and

about 1987 continuing for several years thereafter, Defendant’s allegedly attempted to mislead consumers and purchasers by claiming their food was "Good, basic nutritious food"*[33] with beneficial health effects and nutrients. The Defendant featured alleged deceptive advertisements*[34]   in  promotional  magazines containing statements:

WHAT WE’RE ALL ABOUT

Meat and potatoes. Milk and Bread…

Good, basic, nutritious food.

Food that’s been the foundation of well-balanced diets

for generations. And will be for generations to come.

That’s what were all about.

See Exhibit G-3, incorporated in the complaint as if more fully set forth herein.

                        (2)       That upon information and belief, commencing in 1987

and continuing for several years thereafter, Mcdonald’s featured alleged deceptive advertisements in  promotional  magazines containing statements:

MORE ABOUT THE BRANDS WE USE AND MCDONALDS GOOD FOOD

.And we work with many of our suppliers to increase the nutritional value of our foods.

We cook the way you do…

Most of all, our goal is the same as yours. To serve your entire family as tasty and nutritious a meal as we can make.

Every time.

See Exhibit G-6, incorporated in the complaint as if more fully set forth herein.

                        (3)       That upon information and belief, commencing in 1987

and continuing for several years thereafter, McDonald’s featured alleged advertisements containing statements:

                        More about what we’re all about and McDonald’s good food

 So you know you’ll get tasty nutritious food- even if you don’t        have much time to eat.

The US Departments of Agriculture and Health and Human Services have established guidelines for a healthful diet. The most important is to eat a variety of foods. McDonald’s measures up to these dietary guidelines. …We serve meat, fish poultry and eggs, dairy product and grains. The guidelines also say to maintain desirable weight. To avoid too much fat, saturated fat and cholesterol. To drink alcoholic beverages only in moderation. To eat foods with adequate starch and fiber. And to avoid too much sugar and soda.

All of which is easy to do and still enjoy your meal at McDonald’s.

See Exhibit G-7, incorporated in the complaint as if more fully set forth herein. .

                        (4)       That upon information and belief, commencing in 1991

and continuing for several years thereafter, Defendant’s produced a nutritional booklet entitled  “Nutrition- a Question of balance*[35]     Under the sections:

                        GOOD FOOD AT MCDONALDS

Quality is very important to us. We will only serve our      customers food of the highest standard of quality, nutrition,        hygiene and food safety. In other words, food we would be    happy to serve in our own home.

                        MAKING IT EASY

. To help all of our customers eat healthily, we are constantly making our menu more nutritious.

                                    WHAT’S BEST FOR YOU

Every time you eat at McDonald’s you will be eating good, nutritious food.

See Exhibit G-8-10, incorporated in the complaint as if more fully set forth herein.

                                                                                                                               (5)            However, various medical researchers, nutritionists, (including McDonald’s France Nutritionists) and authorities have found that on the whole, McDonald’s foods are not nutritious, and furthermore,  have warned that Defendant’s certain foods can not be easily be consumed as part of a balanced daily diet and that  users and children  should not consume the Defendant’s certain product more than once per week, and that such consumption beyond once per week, could  have detrimental effects upon such consumer’s health, including increasing risks for development of obesity, diabetes, coronary heart disease, high blood pressure, and elevated cholesterol, all contrary facts and findings represented by Defendant as indicated herein.

            C.        (1)       That upon information and belief, commencing in 1987

and continuing  for several years thereafter, Mcdonald’s featured alleged deceptive advertisement “MORE ABOUT CALCIUM AND  MCDONALD'S GOOD FOOD”, in  promotional  magazines and  recommended their  Hamburger, Big Mac, Quarter Pounder and MCD LT buns as a good source of nutrition for  Calcium. A second advertisement  stated:

                                                EAT YOUR CALCIUM

We add calcium to all hamburger buns and English muffins. Nobody makes us do it, but we know people are concerned about getting enough of the number one bone building mineral, so we add it

See Exhibit G-11, G-12, incorporated in the complaint as if more fully set forth herein.   

                                    (2)       However, the Defendant, while stressing calcium intake, failed to advise or warn Plaintiff purchasers and consumers of the detrimental health effects of the saturated fat and cholesterol effects within the meat such sandwiches  contained.

            D.        (1)       That upon information and belief, commencing in 1987

and continuing thereafter, McDonald’s  promoted its milkshakes as being a good source of “Good nutrition" and being made with only  "wholesome milk, natural sweetener, a fluid ounce of flavoring, and stabilizers, for consistency. And that’s all.” 

                                    (2)       However, the New York State Attorney General found this representation deceptive in that Defendant’s own ingredient listing showed that their milkshake actually contained artificial favors, sodium benzoate, and sodium hexametaphosphate, chemical preservatives. See Exhibit G-13, G-14(More about Real Milk and Mcdonald’s Good Food).

            E.         (1)       That upon information and belief, commencing in 1987

and continuing for several years thereafter, Mcdonald’s featured alleged advertisements in  promotional  magazines claiming their beef is nutritious and leaner than beef  purchased in a supermarket.

                        WE’RE LEANER THAN YOU THINK

                        McDonald’s beef  is  leaner that the kind  of ground beef people buy in their grocery store. The kind of ground beef most        people buy is 70% lean. At McDonald’s we always use beef that’s 77.5 percent lean. That’s 25% lower in fat. We’re lean in other ways too. We add nothing to our beef. No additives. No fillers…Our Cholesterol is Down…Nutritious Beef and More.

See Exhibits G-15, G-16 incorporated in the complaint as if more fully set forth herein.   

                                    (2)       However, the  Defendants representations of "Nutritious Beef" was inaccurate as the levels of saturated fats and cholesterol would not make it nutritious in said quantity and processed state  and furthermore, the USDA has found that foodservice meat was generally  fattier then retail meat purchased in grocery stores.  

            F.         (1)       That upon information and belief, commencing in 1987

and continuing for several years thereafter, McDonald’s allegedly disseminated deceptive advertisements titled: “How we’re getting a handle on cholesterol" and promoted its French Fries as being healthy and low in cholesterol.                  The advertisement specifically stated:

.a regular order of french fries is surprisingly low in cholesterol and 4.6 grams of saturated fat. Well within established guidelines for good nutrition.

See Exhibit G-17, incorporated in the complaint as if more fully set forth herein.

                                    (2)       That upon information and belief, commencing on or about

July  23, 1990 and continuing through May 21, 2001, McDonald’s Corporation issued a press release announcing its decision to change its french fry recipe, stating that it would thereafter cook its french fries only in "100 percent vegetable oil." This press release was disseminated by McDonald’s Corporation throughout the State of New York. As Ed Rensi, the President McDonald’s U.S.A., stated in that press release:

[T]he best french fries in the world have just gotten better . . . . Now our customers can enjoy the same great taste they’ve known and loved for 35 years, but without any cholesterol and with 45 percent less saturated fat per serving . . . . Our customers want to be comfortable that they’re getting not only great-tasting food but good nutrition, too.

At McDonald’s, they get both!

(3)       That upon information and belief, commencing on July 23,

1990 and continuing to present, the Defendant Nutritional Data on  French Fries indicates “0” milligrams of cholesterol in all sizes of its French Fries. See Exhibit G-18, incorporated in the complaint as if more fully set forth herein.

            (4)       This national advertising campaign and nutritional data

disclosure which claims cholesterol free french-fries and touted its switch from a beef tallow/vegetable oil blend to "100 percent vegetable oil" by Defendant encouraged consumers to eat its "healthier" french fries and represented there was no beef and cholesterol content and effects in said fries.  The "change" in the preparation of the fries received extensive news coverage including, inter alia, articles published in the New York Times, Time magazine, the Chicago Sun Times, Atlanta Journal, Dallas Morning News, Wall Street Journal, Los Angeles Times, Washington Times and USA Today, all of which were disseminated in the State of New York.

                                    (5)       At no time between July 23, 1990 and May 21, 2001 has defendant ever disclosed in any advertising, press release,  or public statement that it has continued the use of beef tallow in the french fries and hash browns cooking process.*[36]

                                    (6)       However, McDonald’s above-referenced 1990 press

release and its continuing representations to the public through May 21, 2001 that it was no longer going to use beef tallow in all of its French Fires was/is misleading because McDonald’s never stopped using beef tallow in the cooking and processing of its french fries, hash browns, during such period..

                                    (7)       Furthermore, the Defendant’s representations that there is

"Zero Cholesterol" effect and content in all sizes of its French Fries is misleading because said Fries are processed with partially hydrogenated vegetable, hydrogenated soybean, hydrogenated canola, and hydrogenated corn oil, which the U.S. Food and Drug Administration has found contains trans fatty acids responsible for raising detrimental blood cholesterol levels (LDL) in individuals, leading to coronary heart disease. See Exhibit H,  F.D.A.  Trans Fatty Acids, annexed hereto.    As contained within Defendant’s own ingredient list and nutritional data for its French Fries:*[37]

French Fries:

Potatoes, partially hydrogenated soybean oil, natural flavor (beef source), dextrose, sodium acid pyrophosphate (to preserve natural color). Cooked in partially hydrogenated vegetable oils (may contain partially hydrogenated soybean oil and/or partially hydrogenated corn oil and/or partially hydrogenated canola oil and/or cottonseed oil and/or sunflower oil and/or corn oil). TBHQ and citric acid added to help preserve freshness. Dimethylpolysiloxane added as an anti-foaming agent.*[38]

                                      (8)       The fact that defendant was selling and representing  cholesterol-free french fries and hash browns which contain beef or extracts and trans fatty acids(from hydrated vegetable, soybean, canola, corn oil), were material facts, which defendant should have disclosed, and Plaintiffs would not have purchased or consumed said french fries or hash browns, or purchased and consumed in such quantities,  if said material facts were disclosed.

                                    (9)       That upon information and belief, the attributes, processing, ingredients, added fats, calories, beef flavorings and its cholesterol effects(trans fatty acids) of said French Fries  by the Defendant,  and the dangers of consumption of said product on a continual basis, several times per week, were in whole or in part,  unknown, and not common knowledge,  to Plaintiffs, Class Member purchasers and consumers.

                                    (10)     That upon information and belief, the aforementioned

            processing, ingredient additives*[39] and reformulation of said french fries allegedly created a product with detrimental health effects, if consumed on a continual basis(on or about several times per week over several years),   which were unknown, and not common knowledge,  to Plaintiffs, Class Member purchasers and consumers.

H.        (1)       That upon information and belief, commencing in the

1990’s and  continuing thereafter,*[40]   McDonald's advertisements regarding its McLean Deluxe burger was allegedly found to be misleading regarding its fat content. The company claimed its  McLean Deluxe burger was 91(%) percent fat-free, and only 9(%) per cent fat.  McDonald's was reporting the fat content by weight.

(2)      However, Dr Bernard noted that dietitians or scientists measure the fat content of  foods utilizing the percentage of calories from fat. Using that standard, the McLean Deluxe burger patty was 49(%) percent fat, due to its main ingredient being ground beef, and 29% percent including the bun and lettuce.   See Exhibit  J, Affidavit of Dr. Neil Barnard annexed hereto.

            I.          (1)       That upon information and belief, commencing in 1991*[41]

and continuing thereafter, Mcdonalds, its agents or affiliates, attempted to present Chicken McNuggets as healthy food and made simply  of Chicken. In the Defendant’s “Nutrition and Healthy Eating” booklet it represented and stated:

            MCDONALDS HEALTHY EATING POLICY

McDonald’s is committed to providing high quality, safe and healthy food.            McDonald’s recognizes the relationship between a balanced diet     and health…

            QUALITY INGREDIENTS  

Chicken McNuggets are made from whole cuts of breast and       minced thigh meat. They are shaped in uniform sizes to ensure consistency in weight and value and served in a specially seasoned coating.

See Exhibit G-23-26, incorporated in the complaint as if more fully set forth herein.                        

                                    (2)       That upon information and belief, commencing in June,

1995 and continuing thereafter, Defendant’s nutritional booklet again claimed:

Chicken McNuggets are made from whole cuts of breast and minced thigh meat. They are shaped in uniform sizes to ensure consistency in weight and value and served in a specially seasoned coating.

See Exhibit G-27-30, incorporated in the complaint as if more fully set forth herein.

                                    (3)       However, although the Plaintiffs, Class Members,  and

other reasonable consumers may believe Chicken McNuggets are made of whole cuts of chicken breast and thigh meat as claimed, Defendant’s own ingredient list shows they are actually made of:

Chicken McNuggets:

Chicken, water, salt, modified corn starch, sodium phosphates, chicken broth powder (chicken broth, salt, and natural flavoring (chicken source)), seasoning (vegetable oil, extracts of rosemary, mono, di- and triglycerides, lecithin). Battered and breaded with water, enriched bleached wheat flour (niacin, iron, thiamine mononitrate, riboflavin, folic acid), yellow corn flour, bleached wheat flour, modified corn starch, salt, leavening (baking soda, sodium acid pyrophosphate, sodium aluminum phosphate, monocalcium phosphate, calcium lactate), spices, wheat starch, dried whey, corn starch. Batter set in vegetable shortening. Cooked in partially hydrogenated vegetable oils, (may contain partially hydrogenated soybean oil and/or partially hydrogenated corn oil and/or partially hydrogenated canola oil and/or cottonseed oil and/or sunflower oil and/or corn oil). TBHQ and citric acid added to help preserve freshness. Dimethylpolysiloxane added as an anti-foaming agent

and contains 310 calories, 50% (180) comes from fat(29 grams).(based on 9 piece)*[42], contains three times as much fat as a hamburger.

                                    (4)       As  reported by Eric Scholesser in Fast Food Nation, a

chemical analysis by a researcher at Harvard Medical School found that the “fatty acid profile” of said Chicken McNuggets more closely resembled beef rather than chicken as said nuggets were cooked with “beef tallow.” After the Defendant’s switch to vegetable oil processing, beef extract” was believed  be added to said Chicken McNuggets. See Exhibit L, Fast Food Nation excerpt, incorporated and annexed hereto.

                                                                                                            (5)            That upon information and belief, the attributes, processing, “fatty acid profile, ingredients, added fats and calories, processed composition of said Chicken by the Defendant,  and the dangers of consumption of said product on a continual basis, several times per week, were in whole or in part,  unknown, and not common knowledge,  to Plaintiffs, Class Member purchasers and consumers.

                                                                                                            (6)            That upon information and belief, the aforementioned processing, ingredient additives and reformulation of said Chicken McNugget created a product with detrimental health effects, if consumed on a continual basis(on or about several times per week, over several years),   which were unknown, and not common knowledge,  to Plaintiffs, Class Member purchasers and consumers because of said processing and representations.

J.          (1)       That upon information and belief, commencing in March,

1993 and thereafter,  (National Nutrition Month), the Defendants’ allegedly distributed

attractive plastic toys and booklets on what they consider to be good nutrition. One of these toys is a plastic beef steak named "Slugger," which flexes its toy muscles as if to suggest that meat gives strength. Dr. Neil Barnard, a physician who is the president of the Physician’s Committee for Responsible Medicine(with over 5000 members)  testified that the accompanying booklet stated that eating two servings a day of foods in the meat group "can make it easier to do things like climb higher and ride your bike farther

                                    (2)       However, as Dr. Neal Barnard noted,  the aforementioned “Slugger”  representation was deceptive as foods in the meat group do not increase endurance or athletic prowess, and do not improve a child's capacity to climb or ride,  and the concept that high-protein foods are essential for endurance was proved false many years ago. See Exhibit  J, Witness Statement, Dr. Neil Barnard, incorporated as if more fully set forth herein.

            K.        (1)       That upon information and belief, commencing in June,

1995 and continuing thereafter, Defendant’s nutritional booklet claimed to present its Fish Filet sandwich as healthy food and made simply  of Fish. In the Defendant’s “Nutrition and Healthy Eating” booklet it represented and stated:

The fish in McDonald’s Filet-o-Fish is 100% cod with a pinch of salt to            taste after cooking.

(2)       However, the Filet-o-Fish sandwich  consist of:

Fish Filet Patty:


Pollock or Hoki, bleached wheat flour, water, modified corn starch, yellow corn flour, dextrose, salt, yeast, cellulose gum, natural flavoring (vegetable source). Cooked in partially hydrogenated vegetable oils, (may contain partially hydrogenated soybean oil and/or partially hydrogenated corn oil and/or partially hydrogenated canola oil and/or cottonseed oil and/or sunflower oil and/or corn oil). TBHQ and citric acid added to help preserve freshness. Dimethylpolysiloxane added as an anti-foaming agent.

and contains 470 calories,  (240) comes from fat(26 grams) and 890 mg of sodium and further contains two and-a-half times as much fat as a hamburger.  See Exhibit G-21, Ingredient list.

                                    (3)       That upon information and belief, the attributes, processing, ingredients, added fats and calories,  processed composition of said Fish  by the Defendant,  and the dangers of consumption of said product on a continual basis, several times per week, were in whole or in part,  unknown, and not common knowledge,  to Plaintiffs, Class Member purchasers and consumers.

                                    (4)       That upon information and belief, the aforementioned processing, ingredient additives and reformulation of said Fish Sandwich created a product with detrimental health effects, if consumed on a continual basis(on or about several times per week),   which were unknown, and not common knowledge,  to Plaintiffs, Class Member purchasers and consumers because of said processing and representations.

              L.          (1)       That commencing on various dates as set forth hereafter, the Defendant’s corporate officers, nutritionists,  and spokespeople have represented, on behalf of the Defendant,  in various forums that its food products, specifically its Happy Meals for Children,  are "nutritious”, easily part of a balanced lifestyle and diet,  and can be eaten everyday.

                        (2)       On November 1, 1994, in the Mcdonald’s Corp v. Steel

trial in the United Kingdom,  David Green, McDonald’s Senior Vice-President of Marketing for the  United States testified that: "Mcdonald's foods were "nutritious.” See Exhibit  E, Page 64, selected portion trial testimony of David Green, attached hereto.  

                                           (3)       That upon information and belief, commencing in 2001 and continuing thereafter, the  Defendant’s internet website represents that it is a nutritionist and provides nutritional advice for its consumers claiming their foods can easily compose part of their healthy lifestyle with little modification to one’s diet.  As listed  the Defendants website:

McDonald's USA Nutritionist

.McDonald's can be part of any balanced diet and lifestyle. There are many popular meal combinations and their corresponding levels of fat, saturated fat, cholesterol and sodium.  But remember, there are no "good" or "bad" foods. It's your total diet that counts. By keeping the principles of balance, variety and moderation in mind, you can choose wisely among all the selections at McDonald's. All products served at McDonald's - and provided by our suppliers - must meet our strict specifications and high standards of quality.

See Exhibit G-33, attached and incorporated hereto.

                                    (4)       That upon information and belief, in or about October, 2002, Walt Riker, McDonald's Public Relations Spokesman in the United States released a statement to CNN News Agency that "Eating McDonald's food can easily fit into a balanced diet. I eat its food every day and I'm perfectly healthy."*[43]

(5)               That upon information and belief, in or about October,

2002, Ann Rusniak, the Defendant’s chief nutritionist released a statement "Our wide range of choices on our menu makes it possible for people to eat there three times a day if they wanted to, mixing and matching.Even the Happy Meals are "right-sized for kids," calorically speaking. See Exhibit G-35, attached and incorporated hereto.

(6)               That upon information and belief, the Defendant’s currently

maintain on their website claim:

Q: Can Happy Meals be part of a healthy diet for kids?

            A: Yes. McDonald's Happy Meals provide a great nutrient package for kids ages 5 and 6. According to Food and Drug Administration labeling guidelines, the meals are an "excellent" or "good" source of nine or more nutrients, depending on which Happy Meal combination you choose. See Exhibit G-36, attached hereto

            (7)       That upon information and belief, commencing in 2001

and  continuing thereafter, the Defendant’s current   “Mighty Kids Meal”   promotional campaign, which includes toy giveaways with larger sized meal portions, claims such  meal addresses the physical and psychological needs of 8-10 year old children.*[44]

                                    (8)       That commencing in 2002 and to present, Defendant’s

advertise (through New York in-store posters and media) French Fries, McChicken Everyday! and Big N’ Tasty Everyday! 

                                    (9)       That  upon information and belief, the cumulative effect of these corporate statements and representations conveyed, and/or were meant or intended to convey, to the reasonable consumer, including Plaintiffs, that Defendant’s foods are nutritious, healthy, and can be consumed  every day without incurring any detrimental health effects.

                                    (10)     However, various medical researchers, nutritionists, (including McDonald’s France Nutritionists) and authorities have found that on the whole, McDonald’s foods are not nutritious as they represented*[45] and furthermore,  have warned that Defendant’s certain foods can not be easily be consumed as part of a balanced daily diet and that  users and children  should not consume the Defendant’s certain product more than once per week, and that such consumption beyond once per week, could  have detrimental effects upon such consumer’s health, including substantially and significantly increasing their risks for development of obesity, diabetes, coronary heart disease, high blood pressure, and elevated cholesterol, all contrary facts and findings represented by Defendant,  its agents,  as indicated herein.

46.       The Plaintiffs have all purchased and/or consumed McDonald’s products, including Chicken McNuggets, Crispy Chicken sandwiches, Fish Filet sandwiches, Hamburgers and french fries, and other products of the Defendant,  believing, and having been led to believe, that such foods were healthy and wholesome, not as detrimental to their health as medical and scientific studies have shown, believed said products were of a beneficial  nutritional value and/or effect by the Defendant, and/or were unaware that said products were hazardous or detrimental  to an extent beyond which was contemplated or understood by the reasonable and ordinary Plaintiff purchaser and consumer, relying on the ordinary and customary knowledge of the community regarding the accepted characteristics and composition of Chicken, Fish, Potatoes and seasonings. 

47.       That The Plaintiffs and Class Members would not have purchased and/or consumed the Defendant’s aforementioned products, in their entirely, or on such frequency but for the aforementioned alleged representations and campaigns  made by Defendant.

CLASS ALLEGATIONS

48.       The Plaintiffs file this class action and seek certification of the class  based upon being members of a certain class of persons and/or consumers, under the age of eighteen years,  who purchased and/or consumed products of the Defendant several times per week over several years,  based upon the beliefs, understandings, and/or representations facilitated by Defendant, that its  certain foods: (a) were not as detrimental to their health as medically known, (b) were of a beneficial nutritional value, and/or (3) were substantially healthier when-in-fact, said products were hazardous or detrimental to an extent beyond which was contemplated or understood by the reasonable and ordinary Plaintiff purchaser and consumer, relying on the ordinary and customary knowledge of the community regarding the accepted characteristics and composition of Chicken, Fish, Potatoes and seasonings, and as a proximate result thereof, has significantly and substantially increased the development of their respective obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and/or other detrimental and adverse health effects and/or diseases.

49.       Guardian-Plaintiffs seek certification of this action based upon being members of a certain class of legal guardians and/or natural parents of child consumers, under the age of eighteen years,  who purchased and/or consumed products of the Defendants, based upon the beliefs, understandings, and/or representations facilitated by Defendant its  certain foods: (a) were not as detrimental to their health as medically known, (b) were of a beneficial nutritional value, and/or (3) were substantially healthier when-in-fact, said products were hazardous or detrimental  to an extent beyond which was contemplated or understood by the reasonable and ordinary Plaintiff purchaser and consumer, relying on the ordinary and customary knowledge of the community regarding the accepted characteristics and composition of Chicken, Fish, Potatoes and seasonings,    and as a proximate result thereof, has significantly and substantially increased the development of their children’s respective obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and/or other detrimental and adverse health effects and/or diseases.

50.       The exact number of Plaintiff-Children class members is not known. Plaintiffs  estimate that the class includes thousands of New York State children and guardians and the Plaintiff estimates that the class is so numerous that joinder of individual members is impractical. The number and identities of the class members can only be ascertained through appropriate investigation and discovery.

51.       Common questions of law and fact predominate the claims of all class members, including the named Plaintiffs. These claims depend on proving the Defendant is liable for its acts and/or commissions, in part, based upon a common similar course of conduct.

52.       There are several questions of fact and law are common to the class members, which include:

a.         whether the defendant engaged in, or employed deceptive practices in the advertisement, sale, representations,  and/or promotion of its food products as nutritious, or beneficial nutritional value, or as non-detrimental to one’s health in contradiction to medical studies, or whether it created a hazardous or detrimental product with its processing and reformulated attributes,  to New York State consumers, children and parents, in violation of New York General Business Laws §349 and §350;

b.         whether the Defendants has been unjustly enriched at the detrimental expense of the Plaintiff and class-members;

c.         whether, as a result of the Defendants’ actions and products, the Plaintiff-class is entitled to restitution or equitable relief or to compensatory or punitive damages;

53.       The claims of the individually named Plaintiffs are typical of the claims of the Plaintiff-Class Members. The Plaintiff and all members of the Plaintiff-Class have been similarly affected by the Defendants’ common course of conduct and the members of each class have similarly situated claims and causes of action against the Defendants.

54.       There is no conflict as between the named Plaintiff and other class members with respect to this action or the claims and requested relief herein. That the Plaintiffs is/are aware of their asserted rights and their roles as class representatives.

55.       That Plaintiff and their attorneys are able to and will fairly, and adequately protect the interest of the Class. Plaintiffs’ attorneys can vigorously prosecute the rights of the proposed class members.

56.       That the prosecution of separate actions by individual Plaintiffs is not feasible or efficient, and would be unduly burdensome. Said individual prosecution will create the risk of inconsistent  and varying adjudications and will establish  incompatible standards of conduct for the Defendants, in that different Courts may order the Defendants to provide different types of  reliefs and the Plaintiff and class members proposed evidentiary showings would be based on the same documents and testimony concerning the Defendants’ action or omissions, thereby conserving judicial resources.

57.       A class  action is superior  to the other available methods for the fair, just and efficient adjudication of the controversy. The class action device allows a single court to provide the benefits of a single adjudication, conserving judicial economy and the fair and equitable handling of all of plaintiffs claims in a single action and forum. The conduct of this action as a class action conserves the judicial resources of the parties and of the judicial system, and reserves the rights of each class member.

AS AND FOR A FIRST CAUSE OF ACTION

AGAINST THE DEFENDANTS

58.       Plaintiffs reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

59.       That, upon information and belief, the Defendants, MCDONALD'S

CORPORATION, its respective agents, servants, and or employees,  engaged in unfair and deceptive acts and practices, in violation of the consumer fraud statutes and provisions of the New York Consumer Protection Act (N.Y. Gen. Bus. Law §§349, 350 (Consol.)) by representing and/or attempting to allegedly mislead the users and consumers, from 1987 and continuing thereafter to present,  in widespread advertising campaigns, promotions, brochures, press releases, “consumer-oriented” statements, and on McDonald’s Internet website and in McDonald’s restaurants,(specifically identified above herein),  that its certain specified  food products, including but not limited to:  Chicken McNuggets, Filet-O-Fish, Chicken Sandwich, French Fries and/or Hamburgers were nutritious, of a beneficial nutritional nature/effect, and/or easily part of a healthy lifestyle if consumed on a daily basis, all or partly being  in contradiction to medically and nutritionally established acceptable guidelines.

60.       That upon information and belief, the aforementioned material representations, nutritional advices, and campaigns, viewed in a cumulative effect, and/or  on an individual basis were continual in nature, misleading and contrary to medical, nutritional  and scientific studies which have shown that the Defendant’s represented products were not nutritious or of a beneficial nutritional nature and effect, and actually, if consumed on a continual basis several times per week over several years, could be  shown to be significant and/or substantial factors in the Plaintiffs development of obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases.

61.       Plaintiffs and Plaintiffs-Class Members  relied upon the skill and judgments of Defendant, its agents, servants and/or employees and the representations and nutritional claims of the attributes  of the aforementioned products in connection with the use and consumption of said  food products.

62.       That the Defendants, their agents, servants, and/or employees engaged in such conduct and activities  in the course of trade and commerce.

63.       That by  reason of the foregoing, and through defendant’s alleged misleading representations, plaintiffs have been caused to purchase and/or consume the aforementioned products of Defendant, several times per week over the course of several years, in larger quantities thereof, and expend sums of money therefor, and have further suffered damages including, but not limited to, the development of  obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases, and are entitled to statutory, compensatory, punitive  and pecuniary damages,  in an amount to be determined by a jury at trial.

            AS AND FOR A SECOND  CAUSE OF ACTION

AGAINST THE DEFENDANT

64.       Plaintiffs reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

65.       That, upon information and belief, the Defendants, MCDONALD'S

CORPORATION, its respective agents, servants, and or employees,  engaged in unfair and deceptive acts and practices, in violation of the consumer fraud statutes and provisions of the New York Consumer Protection Act (N.Y. Gen. Bus. Law §§349, 350 (Consol.)) as its certain foods, including but not limited to:  Chicken McNuggets, Filet-O-Fish, Chicken Sandwich, French Fries and/or Hamburgers were substantially less healthier(as a result of processing and ingredient additives),  as represented by the Defendant in widespread advertising campaigns, promotions, brochures, press releases, “consumer-oriented” statements, and on McDonald’s Internet website and in McDonald’s restaurants,(specifically identified above herein),  commencing in 1987 and continuing thereafter to present.

            66.       That upon information and belief, due to Defendant’s representations of its said products Plaintiffs and Plaintiffs-Class Members  relied upon the skill and judgments of Defendant, its agents, servants and/or employees and the representations and nutritional claims of the attributes  of the aforementioned products in connection with the use and consumption of said  food products.

            67.       That the Defendants, their agents, servants, and/or employees engaged in such conduct and activities  in the course of trade and commerce.

              68.       That by  reason of the foregoing, and through defendant’s alleged misleading representations, plaintiffs have been caused to purchase and/or consume the aforementioned products of Defendant, or larger quantities thereof, and expend sums of money therefor, and have further suffered damages including, but not limited to, the development of  obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases, and are entitled to statutory, compensatory, punitive  and pecuniary damages,  in an amount to be determined by a jury at trial.

AS AND FOR A THIRD  CAUSE OF ACTION

AGAINST THE DEFENDANT

69.       Plaintiffs reallege and incorporate all the foregoing facts and allegations

as if fully set forth herein.

70.       That, upon information and belief, the Defendants, MCDONALD'S  CORPORATION, its respective agents, servants, and or employees,  engaged in unfair and deceptive acts and practices, in violation of the consumer fraud statutes and provisions of the New York Consumer Protection Act (N.Y. Gen. Bus. Law §§349, 350 (Consol.)) by specifically representing to the New York State Attorney General and New York State Consumers, through the aforementioned promissory statements, that it provides nutritional brochures and information at all of stores, when in fact, such information was/is not adequately available as represented by the Defendant to the Plaintiff consumers at a significant number of the Defendant’s stores for inspection upon request or otherwise adequately available to the Plaintiff and Class-Members.

            71.       Plaintiffs and Plaintiffs-Class Members  relied upon the skill and judgments of Defendant, its agents, servants and/or employees and the representations that its nutritional data was readily available all point-of-sale locations and stores.

            72.       That the Defendants, their agents, servants, and/or employees engaged in such conduct and activities  in the course of trade and commerce.

73.       That by  reason of the foregoing, Plaintiffs have been caused to believe  said nutritional materials are present, when in fact said data is not available, and subsequently purchase and/or consume the aforementioned products of Defendant, or larger quantities thereof, and expend sums of money therefor, without being adequately informed as to the nutritional consequences of consumption of said foods, and have further suffered damages including, but not limited to the increased factors for the development of obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases, as they  were misled into purchasing and ingesting food that was believed to be healthier or not as detrimental as medically and scientifically found,  and are entitled to statutory, compensatory and pecuniary damages,  in an amount to be determined by a jury at trial.

AS AND FOR A FOURTH CAUSE OF ACTION

AGAINST THE DEFENDANT

74.       Plaintiffs reallege and incorporate all the foregoing facts and allegations

as if fully set forth herein.

75.       That, upon information and belief, the Defendants, MCDONALD'S  CORPORATION, its respective agents, servants, and or employees allegedly negligently, recklessly, carelessly and/or intentionally engaged in the distribution, ownership, retail, manufacture, sale, marketing and/or production of certain products, including but not limited to  Chicken McNuggets, Filet-O-Fish, Chicken Sandwich, French Fries, which were so processed with additives and other ingredients and preservatives,  as to create a danger and hazard unknown to the Plaintiff purchasers and consumers if consumed on a daily basis, over several years, failed to warn said users of said products of the dangers and health effects of consuming said processed foods with unknown and added attributes on such frequency.

            76.       That the  Defendant’s ingredient list shows that its Chicken McNuggets were not simply Chicken with seasonings, but actually composed of the following ingredients:

                                    Chicken McNuggets:

Chicken, water, salt, modified corn starch, sodium phosphates, chicken broth powder (chicken broth, salt, and natural flavoring (chicken source)), seasoning (vegetable oil, extracts of rosemary, mono, di- and triglycerides, lecithin). Battered and breaded with water, enriched bleached wheat flour (niacin, iron, thiamine mononitrate, riboflavin, folic acid), yellow corn flour, bleached wheat flour, modified corn starch, salt, leavening (baking soda, sodium acid pyrophosphate, sodium aluminum phosphate, monocalcium phosphate, calcium lactate), spices, wheat starch, dried whey, corn starch. Batter set in vegetable shortening. Cooked in partially hydrogenated vegetable oils, (may contain partially hydrogenated soybean oil and/or partially hydrogenated corn oil and/or partially hydrogenated canola oil and/or cottonseed oil and/or sunflower oil and/or corn oil). TBHQ and citric acid added to help preserve freshness. Dimethylpolysiloxane added as an anti-foaming agent

and contains 310 calories, 50% (180) comes from fat(29 grams).(based on 9 piece)*, contains three times as much fat as a hamburger.

77.       That upon information and belief, the aforementioned specified processed Chicken McNugget product of the Defendant and its reformulated attributes were hazardous or detrimental to an extent beyond which was contemplated or understood by the reasonable and ordinary Plaintiff purchaser/consumer, relying on the ordinary and customary knowledge of the community regarding accepted characteristics/composition of Chicken with seasonings, if consumed several times per week, for several years.

            78.       That the  Defendant’s ingredient list shows that its Fish-Filet sandwich  was not simply Fish with seasonings, but actually composed of the following ingredients:

                                    Fish Filet Patty:

Pollock or Hoki, bleached wheat flour, water, modified corn starch, yellow corn flour, dextrose, salt, yeast, cellulose gum, natural flavoring (vegetable source). Cooked in partially hydrogenated vegetable oils, (may contain partially hydrogenated soybean oil and/or partially hydrogenated corn oil and/or partially hydrogenated canola oil and/or cottonseed oil and/or sunflower oil and/or corn oil). TBHQ and citric acid added to help preserve freshness. Dimethylpolysiloxane added as an anti-foaming agent.

and contains 470 calories,  (240) comes from fat(26 grams) and 890 mg of sodium and further contains two and-a-half times as much fat as a hamburger. 

77.       That upon information and belief, the aforementioned specified processed Fish Filet product of the Defendant and its reformulated attributes were hazardous or detrimental to an extent beyond which was contemplated or understood by the reasonable and ordinary Plaintiff purchaser and consumer, relying on the ordinary and customary knowledge of the community regarding the accepted characteristics and composition of simply Fish with seasonings, if consumed several times per week, for several years.

79.       That the aforementioned specified processed products of the Defendant, including but not limited to: Chicken McNuggets, Filet-Of-Fish and French Fries, was respectively represented, distributed, and/or sold  as Chicken, Fish and Potatoes, and were hazardous or detrimental to an extent beyond which was contemplated or understood by the reasonable and ordinary Plaintiff purchaser and consumer, relying on the ordinary and customary knowledge of the community regarding the accepted characteristics and composition of Chicken, Fish, Potatoes and seasonings.

80.       That, upon information and belief, the Defendants, their respective agents, servants, and/or employees,   failed to adequately label packages and containers, failed to properly account to the users and consumers of the ingredients, processes and/or added nutritional values of such processing and attributes products,  including but not limited to, the ingredients, quantities and qualities of fat, salt, sugar, and cholesterol content, contained within their respective food products; failed to provide and/or display the nutritional processes or contents of their respective food products at points of purchase, including drive-through-locations, failed to adequately disseminate the nutritional values and contents of the aforesaid respective food products.

81.       That by  reason of the foregoing, the Plaintiffs have been caused to purchase and/or consume the aforementioned products of Defendant several times per week for several years without being adequately informed as to the nutritional consequences of consumption of said foods with  attributes, and as a proximate result thereof, said consumption was a significant or substantial factor in their development of  one or more of the following conditions: obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases, which, upon information and belief, were not due to heredity or environmental conditions,  and are entitled to statutory, compensatory, pecuniary damages,  in an amount to be determined by a jury at trial.

 WHEREFORE, Plaintiffs and Plaintiffs-Class demand a jury trial and judgment and damages against the Defendant,  and further relief as follows:

                        a.         For an Order certifying the Plaintiff-Class herein;

b.                  For compensatory, pecuniary, and/or punitive damages in an amount to be determined by a jury at trial together with interests;

c.         For the funding of an educational program to inform children and adults of the dangers of eating certain foods sold, marketed, produced by Defendants and containing  high levels of fat, salt, sugar and cholesterol content;

d.         For Attorneys Fees, litigation expenses, and costs

e.         Such other or further relief as is appropriate.

Dated:  New York, New York

 February 12, 2003     

_____________________________ 

SAMUEL HIRSCH, ESQ.(5149)

Attorney for Plaintiff

350 Fifth Avenue

New York, New York 10118

                                                                                                (212) 947-3800



[1] Initially, it is noted that this since the filing of this action and presentation of Plaintiffs claims, the Defendant has initiated steps to reduce the trans fatty acids in their cooking oil and have significantly removed representations on their website and even created a “Frequently Asked Questions about Health” and new “Food and Nutrition” website section referencing the Surgeon General’s 2001 report on obesity, relied upon by Plaintiffs in their initial complaint. Furthermore, on February 10, 2002, McDonald’s UK has just announced plans to label all McDonald’s food products with their corresponding nutritional information, and as previously noted McDonald’s France has issued warnings for French children not to eat at their stores more than once per week. See Exhibit A, annexed hereto.

[2]   See 2001 The Surgeon General's Call To Action To Prevent and Decrease Overweight and Obesity, JAMA Prevalence and Trends in Overweight Among US Children and Adolescents 1999-2000, annexed hereto in Exhibit B.

[3]    See 2001 The Surgeon General's Call To Action To Prevent and Decrease Overweight and Obesity annexed hereto in Exhibit B.

[4]     NCHS, CDC. Prevalence of overweight among children and adolescents: United States, 1999 [Internet]. [Hyattsville (MD)]: NCHS

[5]     NIH, NHLBI. Clinical guidelines on the identification, evaluation, and treatment of overweight and obesity in adults. HHS, PHS; 1998.

[6]     Allison DB, Fontaine KR, Manson JE, Stevens J, VanItallie TB. Annual deaths attributable to obesity in the United States. JAMA 1999 Oct 27;282(16):1530-8.

[7]     NIH, NHLBI. Clinical guidelines on the identification, evaluation, and treatment of overweight and obesity in adults. HHS, PHS; 1998

[8]     Ford ES, Williamson DF, Liu S. Weight change and diabetes incidence: Findings from a national cohort of US adults. Am J Epidemiol 1997 Aug 1;146(3):214-22; 2001 The Surgeon General's Call To Action To Prevent and Decrease Overweight and Obesity.

[9]     Willett WC, Manson JE, Stampfer MJ, Colditz GA, Rosner B, Speizer FE, Hennekens CH. Weight, weight change, and coronary heart disease in women. Risk within the ‘normal’ weight range. JAMA 1995 Feb 8;273(6):461-65.

[10]     Galanis DJ, Harris T, Sharp DS, Petrovitch H. Relative weight, weight change, and risk of coronary heart disease in the Honolulu Heart Program. Am J Epidemiol 1998 Feb 15;147(4):379-86.

[11]     Willett WC, Manson JE, Stampfer MJ, Colditz GA, Rosner B, Speizer FE, Hennekens CH. Weight, weight change, and coronary heart disease in women. Risk within the ‘normal’ weight range. JAMA 1995 Feb 8;273(6):461-65.Galanis DJ, Harris T, Sharp DS, Petrovitch H. Relative weight, weight change, and risk of coronary heart disease in the Honolulu Heart Program. Am J Epidemiol 1998 Feb 15;147(4):379-86.

[12]     NIH, NHLBI. Clinical guidelines on the identification, evaluation, and treatment of overweight and obesity in adults. HHS, PHS; 1998. p. 12-13.

[13]     NIH, NHLBI. Clinical guidelines on the identification, evaluation, and treatment of overweight and obesity in adults. HHS, PHS; 1998. p. 12-13.

[14]     2001 The Surgeon General's Call To Action To Prevent and Decrease Overweight and Obesity, annexed hereto in Exhibit B.

[15]     2001 The Surgeon General's Call To Action To Prevent and Decrease Overweight and Obesity annexed hereto in Exhibit B.

[16]     Wolf AM, Colditz GA. Current estimates of the economic cost of obesity in the United States. Obes Res 1998 Mar;6(2):97-106.

[17]     Wolf AM, Colditz GA. Current estimates of the economic cost of obesity in the United States. Obes Res 1998 Mar;6(2):97-106.

[18]     Wolf A. Personal communication. 2001 November 26.

[19]     Wolf A. What is the economic case for treating obesity? Obes Res 1998;6(S1):2S-7S.

[20]     In light of the media exposure this case has already generated, specific height and weight measurements are being excluded from pleading  for the purpose of protecting the infant-Plaintiffs, however specific measurements and medical records will be produced, if requested, at time of disclosure.  

[21]     U.S. Health professionals generally define obesity  as an excessively high proportion of body fat and use a measurement called BODY MASS INDEX(B.M.I.) to classify an individual has healthy, overweight or obese. BMI describes the body weight relative to height and is correlated with total body fat content in individuals. See Exhibit   C  annexed hereto and incorporated in the complaint.

[22]       In fact, it has been reported by Marion Nestle in Food Politics that children consumers make up an estimated 25% of all fast food purchases.

[23]       To be named as Individual Plaintiffs if class certification is denied.

[24]     McDonald’s Own Operations and Training Manual for 1990/91, stated that: "Children are often the key decisions makers concerning where a family goes to eat. Although the parents decide when to go out, the children many times "decide" where to go…Remember, children exert a phenomenal influence when it comes to restaurant selection. This means that you should do everything you can to appeal to children's love for Ronald and McDonald's". Copies of subsequent manuals of McDonald’s as well as other portions of the 90/91 manual, have been unattainable.

[25]   See Exhibit D, store location search for Bronx, New York,  annexed and incorporated hereto.

[26]   See Exhibit  E, Pages 42-44, 54, selected trial transcript testimony of David Green, McDonald’s U.S. Vice-President of Marketing  annexed hereto.

[27]   See Exhibit  E, Pages 42-44, 54, selected trial transcript testimony of David Green, McDonald’s U.S. Vice-President of Marketing  annexed hereto.

[28]  See Fat Land, Page 28, by Greg Crister.

[29]      According to former Texas Assistant Attorney General, Stephen Gardner,  McDonald's began a major, but deceptive, advertising campaign. The company claimed it was an "informational" campaign about the content of their food. However, the company's own internal magazine stated that the aim was " a long term commitment beginning with a year long advertising schedule" .... "to neutralize the junk food misconceptions about McDonald's good food." The buzz words in almost all the ads were "nutrition", "balance" and "McDonald's good food". The Attorneys General, including the New York State Attorney General, indicated the intent and result of the campaigns were to deceive customers into believing the McDonald’s foods were nutritious.         See Exhibit F, Affidavit of Stephen Gardner and Attorneys General investigation documents incorporated herein as if more full set forth herein.

[30]    See Exhibit  E, Page 60, Lines 19-32, 65-66, selected trial transcript testimony of David Green, McDonald’s U.S. Vice-President of Marketing  annexed hereto.

[31]     Texas Asst Attorney General, Steven  Gardner characterized McDonald’s nutritional data disclosure as follows: McDonald's deserved credit for nothing in this regard, because McDonald's had, figuratively speaking, been dragged kicking and screaming into the fold; that they were not leaders; they were, in fact, the last to cross the finish line, and I did not believe it was appropriate for them to take credit for something they had not done specifically…and without admitting they only came to the agreement after being contacted by our offices, they were trying to mislead the public into believing McDonald's to be a leader in this regard rather than a follower. See Exhibit F, Affidavit of Stephen Gardner annexed hereto.

[32]     The actual termination dates of these ads is within the exclusive knowledge of the Defendant as its own Vice-President of Marketing in the United States, David Green, testified that all ads found deceptive by the New York State Attorney General(with the exception of the “milkshake” ad alleged herein), were  not removed or terminated and in fact continued all the cited campaigns and ads for a “few years” as no promotion was ever removed in response to an Attorney General request. See Exhibit  E, Page 60, Lines 19-32, 65-66, selected trial transcript testimony of David Green, McDonald’s U.S. Vice-President of Marketing  annexed hereto.

[33]     See also Exhibit G-4: “WE SHOP WHERE YOU SHOP”: We buy trusted brand names just like you. We make sure they’re made to meet our strict specifications for taste and quality. Then we prepare our food with the same care as you do at home” However, Defendant fails to mention their additives and processes.

[34]      See also Defendants “Balance” ads feature a milk carton with 2% lowfat milk on top of a Big Mac and Large French fries as  implying the Big Mac and fries was part of a balanced diet, with consumption of 2% fat free milk. See Exhibit G-5.

[35]     In the landmark  trial of McDonalds v. Steel, et al,  No. 1990-M-NO.S724, presented in United Kingdom, Royal Courts of Justice,  from  June, 1994  to December, 1997, the Defendant, McDonald’s Corp.,  filed a libel claim against two individuals for distributing an alleged defamatory leaflet. The case lasted three years with over 199 days of trial testimony, wherein voluminous evidence was presented regarding the Defendant’s alleged deliberate withholding of nutritional information and deceptive promotion of its foods as nutritious to children and consumers in New York, throughout the United States, Europe and United Kingdom.

[36]     McDonald’s admitted the truth about its french fries and hash browns in a statement found on the Company’s U.S. web site. McDonald’s stated: Because it is our policy to communicate to customers, we regret if customers felt that the information we provided was not complete enough to meet their needs. If there was confusion, we apologize. Meanwhile, here are the details of our French fry production in the U.S. A small amount of beef flavoring is added during potato processing - at the plant. After the potatoes are washed and steam peeled, they are cut, blanched, dried, par-fried, and frozen. It is during the par-frying process at the plant that the natural flavoring is used. These fries are then shipped to our U.S. restaurants. Our French fries are cooked in vegetable oil at our restaurants. See Exhibit G-19, Apology statement.

[37]  As indicated in Fat Land, Page 28, by Greg Crister, a serving of McDonald’s french fries had started from 200 calories in 1960, to 320 calories in late 1970’s, to 450 calories in mid-1990’s, to 540 calories in late 1990’s to 610 to present. In fact, what was once a 590 calorie McDonald’s meal is now 1550 calories. The added ingredients alleged herein allegedly, upon information and belief,  contributed to these caloric  increases, which were never adequately disclosed by Defendant.

[38]  See Exhibit G-20, G-21, G-22.

[39] Additionally, according to Vance Johnson, retired employee of Lamb Weston(McDonald’s french fry manufacturer), as of 1990 to present, McDonald’s  instructed Lamb Weston to use its french fries recipe and apply a  coated "invisible" film  over said fries. The alleged purpose of this coated invisible film is to keep said french fries crisp for up to 45 minutes, and that without said “film” said french fries would go limp in approximately 10 minutes. Mr. Johnson also indicates that the consumer is not informed that said fries are coated and the ingredients described only a “potato starch” with no mention of other ingredients used to liquefy the “starch” or make it cling to the French Fry surface, as well as any resulting trans fatty acids. Therefore, issues remain as to the health and nutritional attributes, processing, ingredients, and effects of this “film”, as described by Vance Johnson. See Exhibit I, Letter of Vance Johnson annexed hereto.

[40] It is believed this representation began in 1991 but when same ceased is within exclusive knwoledge of Defendant.

[41]     Further, David Green, Vice President of Marketing for McDonalds(USA) testified that even prior to 1991, the New York State Attorney General by letter of September 6, 1985 challenged the Defendant’s ads regarding its Chicken McNuggets were “100% chicken” and  that “Only delicious Chunks of  Juicy breast  and Thigh Meat Go into Chicken McNuggets” The New York State Attorney General found these ad deceptive as the chicken meat is mixed with chicken skin and McNuggets are cooked in high-fat beef lard which is absorbed into the chicken. See Exhibit E, trial testimony of David Green, Day 43, Page 59.

[42]     This analysis does not include sauces, See Exhibits G-31, G-32, ingredient list.

[43] As reported in CNN article, Re: McDonald’s suit, 1/22/03:  A McDonald's spokesman in the United States told CNN in a telephone interview that "this is one person's opinion. Eating McDonald's food can easily fit into a balanced diet. I eat its food every day and I'm perfectly healthy," the spokesman(Walt Riker) said.

[44]   As stated in its own press release, dated March 22, 2001, by R.J. Milano, Vice-President of Marketing, McDonalds USA :“ We understand that kids ages 8-10 are going through both physical and psychological changes. They have growing appetites, and do not want to be identified as “little kids” anymore. Our Mighty Kids Meal addresses these needs.”  See Exhibit G-37, G-38, attached hereto.

[45] As advertising researcher, Peter Cox, stated, “if [McDonald’s]  elect to cast themselves in the role of nutritional consultants to the public - as they most conspicuously do - then they have a solemn obligation to tell the truth - and to tell all of it…By virtue of their promotional literature claim to be expert in and proficient at dispensing advice on healthy eating to the public,  whilst in reality giving highly partial and incomplete advice, especially in relation to the incidence and prevention of dietary-related cancers …McDonald's have certainly produced misleading nutritional information for the public through their brochures as they "are deliberately misleading the public as to the nutritional value of the food they sell when they know full well that the contents of an average McDonald's meal are linked with heart disease…and are deliberately misleading the public as to the nutritional value of the food …See Exhibit K.

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