John Banzhaf, the anti-smoking activist who is now promoting himself as an anti-fat crusader, says he is ready to have another go at McDonald's. Last month, when U.S. District Judge Robert Sweet dismissed a lawsuit by fat teenagers who blame the chain for their obesity, he suggested that they might have a case if they could show that McDonald's deceives its customers. Banzhaf, who is advising the plaintiffs' attorney, Samuel Hirsch, was grateful for the guidance.
"The judge took the extraordinary step of telling us what he thought was left out," the George Washington University law professor told the Chicago Tribune. "Anytime a judge tells us what he would like to see in a complaint, I love it."
The Chicken McNugget is one possible target. In his January 22 opinion, the Tribune notes, Sweet suggested that
few McDonald's customers are aware that Chicken McNuggets contain twice the fat of a hamburger, as well as dozens of ingredients besides chicken.
"Chicken McNuggets, rather than being merely chicken fried in a pan, are a McFrankenstein creation of various elements not utilized by the home cook," Sweet wrote in his opinion.
"If plaintiffs were able to flesh out this argument in an amended complaint, "it may establish that the dangers of McDonald's products were not commonly well known and thus that McDonald's had a duty toward its customers," the judge wrote.
But arguing that McNuggets are not what they seem–second only to airline travel as a topic for lame standup comics–will not be enough to recover damages. The plaintiffs will have to show not only that they were misled but that they were injured as a result. As the Tribune put it,
They have to prove that too many trips to McDonald's led to diabetes, heart disease, strokes or other obesity-related illnesses. That will be difficult considering all the factors that contribute to obesity, from genetics to sedentary lifestyles. Add to that the number of different restaurants a person might eat at, and the picture gets even murkier.
It seems unlikely that Hirsch, who has until February 21 to file a new complaint, will be able to meet this burden. But the lawsuit already has been very effective at attracting attention to John Banzhaf. For a man who revels in any kind of publicity, even when it emphasizes his reputation as a blowhard and glory hound, this is the real measure of success.
[Thanks to Linda Stewart for pointing out the story.]