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.
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.
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.