Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/16

 provides examples of such specific statements. The case involved a claim under § 349 against cigarette manufacturers, alleging deceptive practices. In the 175-page complaint, filed on April 29, 1998, the plaintiffs including a number of specific allegations of deceptive acts and practices, including the following: Many of the practices were found to have supported liability in the opinion on which the plaintiffs rely. Blue Cross and Blue Shield of New Jersey, 178 F.Supp.2d at 269–70. Because such statement are necessarily “consumer-oriented” and thus in the public domain, plaintiffs should be able similarly to point to the specific statements that form the basis of their claims pursuant to §§ 349 and 350.
 * a statement that “no causal link between smoking and disease has been established” (Blue Cross Complaint, ¶ 112);
 * a letter to a grade school principal stating that “scientists don’t know the cause of causes of the chronic diseases reported to be associated with smoking” (Id., ¶ 113);
 * testimony under oath by a tobacco executive that he did not believe that people die from smoking (Id., ¶ 114);
 * Congressional testimony by tobacco executives stating that tobacco companies did not manipulate, add, control or restore nicotine during the manufacturing process (Id., ¶ 219);
 * advertisements denying that tobacco companies believed cigarette smoking was addictive (Id., ¶ 220); and
 * statements in newspaper advertisements that claimed “Philip Morris does not believe that cigarette smoking is addictive” (Id., ¶ 221).


 * a. Count I

In Count I, plaintiffs allege that McDonalds violated the act both by commission (e.g., stating that its products were nutritious, encouraging consumers to “supersize” their meals without disclosing the negative health effects) and by omission (e.g., failing to provide nutritional information for products).


 * i. Deceptive Acts

Because the Complaint does not identify a single instance of deceptive acts, Count I shall be dismissed to the extent it alleges deceptive practices of commission in violation of §§ 349 and 350.

Although the Court is limited to allegations in the Complaint for the purposes of deciding this motion, Kramer, 937 F.2d at 773, it is worth noting that, even in their opposition papers, the plaintiffs only cite to two advertising campaigns (“McChicken Everyday!” and “Big N’ Tasty Everyday”) and to a statement on the McDonalds’McDonalds [sic] website that “McDonalds can be part of any balanced diet and lifestyle.” These are specific examples of practices, actacts [sic] or advertisements and would survive a motion to dismiss on the substantive issue of whether such practices, actacts [sic] or advertisements are deceptive is less clear. The two campaigns encouraging daily forays to McDonalds and the statement regarding making McDonalds a part of a balanced diet, if read together, may be seen as contradictory—a balanced diet likely does not permit eating at McDonalds everyday. However, the advertisements encouraging persons to eat at McDonalds “everyday!” do not include any indication